 This program is brought to you by Emory University. Ladies and gentlemen, let's go ahead and begin the next session. The Curry Lectures in Law and Religion, where a lecture series created 15, almost 20 years ago now, Woody, I think, by the Anderson Curry, Overton Curry, and his family as an early contribution to our work in law and religion. We had annual Curry Lectures on a variety of topics from a very broad range of outstanding scholars. I'm delighted that today two of the finest scholars in the country are participating in the Curry Lecture Series that is part of this. The session is chaired by my colleague, my dean, my provost, my president, Howard O. Hunter, or Woody Hunter. Woody joined the Emory Law School faculty in 1976, served as dean for over a decade, 12 years, dean here at Emory Law School, then provost of Emory University, and is currently the president of Singapore Management University. Woody, I suspect, traveled further than anyone else here in coming 10,000 miles home to help me a part of this conference. Woody, welcome back. Thank you very much, Frank. Although this is probably John's responsibility, I'm going to take it over for a moment and tell you that because lunch ran over a little bit, we will have a shorter coffee break this afternoon between sessions. John, if I've done wrong, I'll take back your tenure. This afternoon we're having two splendid and luminary speakers for the Overton Curry Lectures. Next to speak this afternoon will be Professor Jean Bethke Elstein, who is the Laura Spellman Rockefeller Professor of Social and Political Ethics at the University of Chicago, a position she's held for more than a decade. She's also taught at the University of Massachusetts and at Vanderbilt University and has been a visiting professor at Harvard and Yale. She holds nine honorary degrees and is a fellow of the American Academy of Arts and Sciences and a prolific author who has had more essays than one can hardly count and has authored her edited 20 books, including Just War Against Terror, The Burden of American Power in a Violent World and Jane Addams and the Dream of American Democracy. She's also a contributing editor for the New Republic. Professor Elstein, thank you. Thank you very much. I realize it's part of my task to help us stay awake. After lunch. So I hope I'll succeed in doing that. Thank you so much for the generous introduction. It is an honor to share the stage with the distinguished Judge Noonan. I appreciate the opportunity. I told John Witte that I probably would say a few things that were politically incorrect and he said I'm deeply shocked. You've never done that before and I said I know, but it's possible I'll do it this time. So with that, let me begin. One of the most eloquent defenses of law in the dramatic theater is put into the mouth of St. Thomas Moore by the playwright Robert Bolt. Realizing that his life may well be in jeopardy given the latest moves by King Henry VIII against the church for not granting him a divorce, Moore speaks to his daughter Meg and his hot-headed son-in-law Roper. Moore, what would you do? Cut a great road through the law to get to the devil? Roper, I'd cut down every law in England to do that. Moore, oh, and when the law, the last law was down and the devil turned round on you, where would you hide, Roper? The law's all being flat. This country's planted thick with laws from coast to coast. Man's law is not God's and if you cut them down, do you really think you could stand upright in the winds that would blow then? Yes. I'd give the devil himself benefit of law for my own safety's sake. Now, this is stirring stuff and to those of us from law-governed societies such as the United States, a society that does political philosophy, my field, primarily in the form of constitutional law, it is often all or nearly all that needs to be said. Yes, we cheer the rule of law, not of men. It follows that we are loath to take up the possibility that law or perhaps better put an excess of legalities may not so much protect us against tyranny as itself constitute an overbearing structure. This is not, of course, a new worry, but instead a very old one. There are intimations of this worry in St. Thomas Aquinas's summa contra gentilis. St. Thomas fretting about legal overreach, taxes the law should it pretend that it can read into the human heart, govern interiority, create a kind of moralistic omniscience. St. Thomas no doubt mentions this because Christians may well be tempted in that very direction. Did not Jesus himself talk about the grave sin of lusty in the heart and not just doing the sinful deed? But, Thomas reminds us, only God can see into, pry into human hearts. When human law aims to do so, it is deeply problematic at best and it can become tyrannical at worst. And more at his trial in the Robert Bowell playman for all seasons says to those who are arrayed against him, what you have hunted me for is not my actions, but the thoughts of my heart. It is a long road you have opened. Now, chastening legal overreach that turns law into a tyranny over human beings requires that the law acknowledge that it cannot eliminate or prohibit in St. Thomas's words every human action because in trying to eliminate evil it may also do away with many good things and the interest of the common good which is necessary for any society may be adversely affected. Now tyrannical laws you know for St. Thomas is no real law at all no matter how well-intentioned it may be. Given St. Thomas's high view of the law and of the law's normative function is wearing us about legal overreach should give us pause. Law is an ordination of reason for the common good. Law helps to habituate human beings to virtue but again there are limits not every sin is a crime not every sin can or should be punished by the civil law, law yes legalistic overreach no. Now surely part of what is going on here is St. Thomas's general Aristotelian approach roughly that one's inner world can be transformed as one conforms to worthy norms through processes of habituation that is the outer can help to reconfigure the inner from the point of view of the law behavior counts for more than intention again because the law cannot probe into human hearts only God can do that. Now be painting in broad strokes for a few moments but with the coming of Protestantism one finds I submit more stress on interiority a reaction at times perhaps an overreaction to Catholic stress on externalities on doing on rituals on sacraments and so forth Protestants again painting in broad strokes kept spiritual diaries engaged in private devotion emphasized praying in secret interior transformation precedes outer behavior that I finally come to see the light will in turn prompt an alteration in how I act in the world so the burden of the trajectory seems to move more from inner to outer law could not help but be affected by these broad changes in orientation for St. Thomas the law aimed at a public or common good always remembering that earthly dominion was a good but never the sumum bonum the aim of the law was in the first instance was to make it regulative to make regular our social relations to guarantee if you will that society not fall below a level of minimal decency the law could not make us perfect but how high could it aspire for St. Thomas higher than for St. Augustine who reckoned that we could reach higher than a den of robbers but perhaps not that much higher most of the time there is a longer stress on the raised publica the public thing so that the law name aims higher but never at ultimacy or perfection if the law becomes totalistic it would make us all in despise and informers trying to pry into our neighbor's hearts to look into our neighbor's window to pay less attention to the moat in our own eyes so a golden mean of sorts do not too readily conflate sins and crimes some sins or crimes but not all are a looser social order than what comes later is clearly what St. Thomas works with and knows this view will no doubt surprise many who continue to see the Middle Ages as a very rigidly structured authoritarian time but bear in mind that life and work were not yet tied to the clock the workforce was not yet disciplined in the way it later became this was before the era of identification cards and all the other insignia of modern identity and here I would recommend to you Natalie Zeeman Davis' wonderful book The Return of Martin Gaer great film too to alert us to the difference between the old, more loosely structured medieval world that is passing and the newer, more law governed more regulated, more if you will more Protestant ordered world that is coming into being now the law I submit acquires an even higher normative status more normative weight with Protestantism no one has done more to recuperate this history than John Whitty I think it is fair to say and I hope that John agrees with me it would be terrible if he didn't but the greater attention was because he could argue me I'm sure the greater attention was paid to human hearts for their motivation and not just with the aim of getting people to behave in certain ways but in lifting up a higher standard of honor and virtue for ordinary folks the secular vocations were lifted up including house wiffery and husbandry the distance between the spiritual and the temporal was reduced Charles Taylor has called this the affirmation of ordinary life I called it the redemption of everyday life in my 1991 book Public Man Private Woman and certainly the greater expectation that high standards embodied in law could be attained and sustained as part of that now where is the problem the problem is this it is a few short steps taken no doubt incrementally from granting the law a high moral and normative purpose to a kind of legal moralism and a quest for a form of totalizing perfectionism we say concerning nearly every problem an issue there ought to be a law and before you know it there is and then another and then another and sometimes these laws go way too far now let me give you an example from my own experience of 35 years now in the American Academy as a teacher the example is going to be sexual harassment codes there was a problem absolutely how to remedy it the solution was frequently a stifling overreach based on the presumption that all men as these I was there on the ground floor when these things were being debated were rapists in situ there was a kind of orthodoxy in the 1970s and 1980s women had been told this in text after text the women who were helping to formulate these codes that all men were guilty before being charged all men harbored a desire to rape and to ravish thus Susan Brownmiller, Andrea Dorkin Mary Daly, Tigris Atkinson Catherine McKinnon and other legalistic authoritarians so you could not just regulate behavior and punish infractions you had to try to arrest every possible bad thought because the assumption was there is a direct unbroken conduit between a bad thought and an ugly deed given the ontological taint born by male human beings as if men bore the entire burden of original sin if you will and women were the morally pure and virtuous victims now do you think I exaggerate I would ask you to think again and to and to go back and reread these texts and tract many of which are now considered classics and required readings and read the remedies proposed to fight back the male threat thus Brownmiller all men carry a lust to power that comes out as an ideology of rape so actual rapists are the shock troops doing the dirty work on behalf of all men and the man who condemns rape in fact covertly approves of and benefits from the practice thus Mary Daly men are demons sacking the lifeblood of women like Dracula the he-male has lived on women blood women who do not share daily's views are condemned as mutilated, muted moronized docile tokens mouthing male texts a lot of m's and a lot of alliteration in there well there are more examples but I'll stop just as radical feminist ideology declared an identity between public and private so law must as stew altogether any distinction between the intimate and the public must breach any barrier of inhibition shame or taboo there was after all proclaimed Andrea Dworkin a quote dachau in the heterosexual bedroom so law had to reach into its interstices now let me be absolutely clear this went beyond any level of appropriate concern and punishment of physical abuse and violence to become an absolute catechism in which every sin became a crime although the category of sin of course was eliminated but you take my point law had to reach into the human heart had to turn men inside out and even then they could not be trusted unless there was a cleag light shining on every deed so that any untoward thought could not usher into an action all men were guiltiest charged a small step from that to punishing as did the sexual harassment code at the university where I was then teaching quote unsolicited ogling now I'm not sure what solicited ogling consisted in a friend of mine and I she taught in economics thought we would try to solicit ogling and see if we got any response and we didn't there were also proposals by the way some of my male colleagues decided they would start wearing dark sunglasses at all times so they wouldn't be punished for ogling whether solicited or unsolicited and humor is probably the best way to deal with some of this there were also proposals hence my cleag light reference to cut down all the trees and bushes on this beautiful campus because rapists might be lurking there at all times this natural greenery was to be replaced by cleag lights so that all darkness was repelled putting me in mind of the stunning and horrifying portrayal of Nazi Germany and the brilliant film Mephisto in which the protagonist at the films terrifying denouement is suddenly trapped as the cleag lights come on this is a kind of horrible excess and parody of the stage lights that he is an actor loves and he's collaborated with the regime so he can continue to act the cleag lights come on the sirens Blair and he is a captive of this all seen all knowing state so every interaction that between male and female was to be pleased now this fundamental mistrust of people this loathing of the messily human was a perverse mirror image of the uplifting of the ordinary I characterized as one feature of the rise of Protestantism is as if we were being told we trusted people too much we certainly trusted them too much and now we've got to clamp down the upshot was that all of this made young women in my experience not stronger but weaker how are they to feel up against what they were told was such a relentless implacable foe and this is what the law certainly the campus law told young women to that everything must be regulated that human sociality or at least male so thoroughly corrupted nothing else was possible so legal overreach makes people weak it removes responsibility and an appropriate level of culpability it puts everything into the hands of draconian codes and overzealous administrators and campus authoritarians and all the rest we know too much about now I have some other examples that in the interest of time I think I'll foreshorten examples drawn from our elementary school playgrounds where as you know just this week there was another case of a little six year old boy suspended from school for drawing two smiling stick figures he and his school chum and he's shooting at his school chum their little circles coming out of his gun and it turns out he was representing a water pistol and he and his friend are at play as a threat he's suspended this is the sort of thing I'm talking about what at one point might have been a pedagogical occasion I was calling the teacher see if those little boys obsessed with gal almost all little boys are so you'd have to have every parent in there at some point or another almost all not all but at any rate why turn all of these things into legal occasions into litigious occasions as if we're saying nothing any longer can be innocent childish all must be construed through the lens of forbidden or permitted legal or illegal and we really do think we can pry into human hearts but again legal moralism does not guarantee a decent order it can in fact constitute a great disorder now I realize it is too easy way too easy to draw examples from national socialist Germany which was in its own way a very legalistic society with new laws being promulgated nearly every day to cover nearly every vice including the vice of secretly harboring anti-regime notions even though one had said or done nothing which was a habit that Europe had already got into with the French Revolution and people being guillotined for secretly dissenting from the revolutionary project so I don't want to do what's called an ad Hitler room here but there are aspects to Nazi law that should perhaps make us a bit squeamish we all know about and deplore the race laws and the eugenics madness but I'm going to report on something else the astonishingly expansive public health laws of the third Reich brilliant book by Robert Proctor called Nazi medicine details this because German doctors had articulated the link in smoking and lung cancer in the 1920s the third Reich prohibited all public smoking even by soldiers pushed non-smoking for pregnant women who were to be mothers of the master race for women who weren't part of the master race and were pregnant there was another fate pushed herbal and homeopathic and holistic medicine against the divisiveness of the Jewish science of modern medicine forced prisoners at Dachau to tend to the largest herbal gardens in Europe in order to prepare these homeopathic remedies pushed vegetarianism even as they were murdering down syndrome children and other persons with mental and physical handicaps all this is part of the great project of purification of making the body politic pure we must cleanse it of taints that puts me in mind of Mary Douglas a brilliant anthropologist of her book on purity and danger sort of bringing back to boo under the sort of legalistic structure well why am I mentioning all this because the rush to become legally virtuous in a totalizing way need not mean that a society is in fact virtuous it may be anything but I'm happy there's no smoking in this room don't get me wrong but when we get on a moralistic high horse about something there's not necessarily a signal how advanced we have become and our own sensorious totalists now want to go back and airbrush history into the classics of cinema and airbrush out the cigarettes you know bogey without a cigarette in Casablanca as he sits at Rick's cafe that's both a sin and a crime once you start mucking about with film classics you have gone a statue too far we lose a sense of history and place even as we pat ourselves on the back about just how advanced we are when I was an eighth grader we signed a pledge never to permit demon rum to pass over our lips this following a dramatic display of the dangers of drink when an earthworm was dropped into a glass of gin and appropriately and predictably shriveled up and died of course water would have invited the same outcome but one wasn't supposed to point this out but the enforcer of that pledge was one's own conscience now one of my 11 year old grandsons this year had to sign a pledge at his school never to harass anybody but harassment was left tantalizingly vague it's sticking up for yourself harassing somebody if in our political culture those who take to the airways all the time thinking of one film star who did this just recently to proclaim they're being censored and marginalized as they're on television preaching to millions because someone has the audacity to disagree with them it doesn't take much of an imagination to see an overzealous manager consturing a vigorous disagreement as an instance of someone probably a last the little boy harassing someone else and it isn't one's conscience that's the enforcer now it's this sort of lopsidedly weighted structure with a kind of legalistic therapeutic administrative apparatus that we've invented and secured in our schools and universities and everywhere else alright one more example from everyday experience and then I'm going to turn to Emanuel Kant and hope I'm staying reasonably within the time limits my example is going to be hate crimes when hate crime legislate why does that fit within my general thesis I hope I can explain it when hate crime legislation was first debated I recalled in one of my medieval history courses my study of early medieval legal codes and the Frankish clans and tribes it was a system called the verguild whereby lopping off the arm of the lord was a far more serious offense than lopping off the arm of the serf arms were missing in each instance but the one was a more punishable crime a more severe crime than the other so it seems to me with hate crime again legalistic overreach a person has been murdered but we rank the victim morally and legally higher in our estimation if he is black let's say or homosexual or from some other category against whom we believe hate crimes are most likely to occur on what does the determination of a hate crime as opposed to just simply having murdered someone turn once again prying into the human heart doesn't it suffice that a precious human life has been taken there is an objective offense here a rending of the fabric of the moral universe punish the crime of murder if the victim is the white male CEO of an international global corporation does his life count for less than that of the gay man attacked on his way home on a Saturday night a human life is a human life we can never adequately plum motive there have been many who have tried all these books on understanding Adolf Hitler understanding Stalin understanding Ted Bundy all these efforts come up short perhaps because we have expunged the terms of discourse that might serve us well here namely evil or sin be that as it may surely the important question is what did they do severely punish the deeds as the saying goes if the law could look into our hearts none would escape whipping so the morally quality of persons then something that this sort of overreach in the case of hate crimes violates in believing that motivation in and of itself is an additional punishable offense and add on to the crime of homicide alright let me turn to Emanuel Kant who I think is one of the architects of a kind of legalistic overreach and give you an example from current international relations to show you how this regime of a kind of perfectionism may function there or attempt to function and as counterpoint to Kant to Dittrish Bonhoeffer the anti-Nazi German theologian hang by the Gestapo April 9th 1945 for his part in the conspiracy to assassinate Hitler and Bonhoeffer makes his argument in the name of Christian freedom in an essay what does it mean to tell the truth that some have mistakenly construed as a piece of situationist ethics it is not rather it is a preliminary foray into the area of legalistic moralistic overreach in the name of truth an approach that Bonhoeffer links to Kant's severe deontological ethics now Bonhoeffer reminds us that it is Kant who insisted one must give an honest answer to the query put by a would be murderer as to whether his intended victim and one's friend is hidden on the premises if the friend is indeed hidden there one has no choice for the prohibition against the line is absolute but to reveal that fact and to give one's friend over thereby to the murderer this invites Bonhoeffer's comment that the moralist at this point becomes a tormenter of humanity this severity breaks sociality it fractures friendship it splits us off from the responsibilities of Kerritos who certainly Christians face the prospect at least those who put themselves on the line as rescuers said that the scenario was none too hypothetical suppose the Gestapo knocked on the door is one's Jewish neighbor hidden within well if you are a Kantian deontologist you must say yes you all know about the severity of the categorical imperatives they cannot be modified they cannot conflict with one another there can be no taint of a consequentialist dimension one lives in a very simplistic universe indeed in Kant's world so the Jewish neighbor would be given over to his depredator now Kant quite unconvincingly when some people criticize this said well perhaps a person could make an escape or not be found and that's pretty lame stuff I think you'll agree and the name of responsibility and the name of Kerritos and the name of Christian freedom Bonhoeffer says do not break the bonds of sociality do not deny the neighbor there is more truth spoken by the school child assaulted in a classroom by a teacher who accuses the child's father of being a drunk and the child stately denies it although the child's father is a drunk Bonhoeffer argues because the child is speaking to the truth of fundamental human social familiar relations that the school teacher ought not to be in the business of assaulting publicly if you follow the deontological line and add to it some of the histrionic overreach I alerted us to earlier including the eradication of any public private distinction then you are going to be in this legalistic nightmare whereas Bonhoeffer says everything has to have a placard on it saying permitted or forbidden I have another example in the interest of time perhaps in the Q&A we can get to the area of torture and an argument that I made against Professor Alan Dershowitz's suggestion that interrogators should go before a judge and seek torture warrants to legally permit them to torture a terrorist suspect who likely has information that if revealed would save countless human lives I use this as another example again of going a bit crazy with the legalistic dimensions of all of this and removing it from the realm in which I believe it is more properly talked about again in the interest of time I'm going to pass that over and I think pass over as well my worry but I'll summarize it very quickly that soldiering in the current US context seems to be moving from a rule governed activity and the just war tradition to one that is now excessively legalistically constructed and we again seem to increasingly mistrust the capacity of ordinary soldiers to make decent decisions even under situations of horrific stress so that's the argument I make there but let me get to my final example from Kantian ethics and that's in the area of humanitarian intervention and in order to say something about that I need to remind you of Kant's famous essay on perpetual peace now some of you have surely read this essay and if you have you'll know that for Kant a mere truce that is when people aren't fighting and killing one another doesn't count for very much at all for him that's paltry puny stuff what you've got to do is to extirpate he says the will to war entirely eliminate the intent and then and only then do you have something that could reasonably be called peace one worry here would be that this kind of argument makes the humanly possible work people do to make life less violent look pretty puny by comparison to extirpating the will now Kant offers a hard teleology whereby nature dictates thus and so there's a kind of inevitability in the argument international relations scholar Martin White warned some years ago that followers of these Kantian ideals quote could be merciless and unrestrained they could see themselves as righteous agents of historic necessity bringing about a better world for this reason white concludes that quote if you are apt to think the moral problems of international politics are simple you are a natural instinctive Kantian end of quote and as we all know those who are in possession of a grand T loss very commonly look as scans at those of us who are more inclined to agree with Max Weber that politics is most of the time the slow boring of hard boards it proceeds with great difficulty and slowly so give me let me give you this one example humanitarian intervention it isn't a new thing it's been talked about in one way or another for centuries here we might recall Augustine's sparing the innocent from certain harm as a legitimate Kaz's for an outside party to bring force to bear current discussions of humanitarian intervention I heard this just three weeks ago to form a forum on the morality of exit from Iraq heard this repeated stress right intention as the single most important criterion when we are making an assessment of the rightness of a humanitarian intervention it must be entirely what's the motive humanitarian intervention must be motivated by one single motive dis interestedness now disinterestedness is certainly not entailed in the classic just war notion of right intention there's nothing so severe as that no probing to be certain one's motives are at one and entirely pure the worry here is that if humanitarian intervention requires an a priori right intention criterion as many of these international legal people are arguing construed as disinterestedness we are never going to see humanitarian intervention Augustinian Christianity surely teaches that for all human motives are mixed we are limited finite creatures who are never just have one mind about something we will and we know simultaneously absolute purity of intention you are not going to find on this earth now humanitarian intervention operating within this perspective push disinterestedness with scant regard for the very raison d'etre of the state which is to protect its own citizens and to defend the national interest an absolute disinterestedness would be by definition a grave failure of the state's responsibility is grave as the dereliction of the parent who claims that he or she reckons his or her own child on an identical plane to the abstract category of all children everywhere we would find something monstrous about that do mixed motives then disqualify humanitarian intervention the people using Kant as inspiration say yes there can be no consequentialist consideration of any kind all must be transparent nothing held in reserve any appeal to one's own national interest is absolutely forbidden and sullies the matter and you can't then legitimately engage in a humanitarian intervention if we accept that all human motives are a complex admixture a human humanitarian intervention is not perforce invalidated if it overlaps with other motives indeed how could one possibly disentangle them now when the hardcore legalists get hold of this however to disinterestedness is added a requirement that humanitarian intervention must be approved by the United Nations Security Council which pretty much guarantees that nothing is going to be done now let's conclude with Kant in this way this section I would say that it is as naive to believe that a purely humanitarian intervention is possible and the reality of international relations as to believe that an intervention that is not exclusively motivated by humanitarian goals cannot have a humanitarian effect remember by their fruits you shall know them that's what scripture tells us by their fruits you shall know them now there's much more that can be said but let me move to conclude and remind you of some words from King appropriate Shirley here in Atlanta at one point at the height of the civil rights struggle King stated we're not asking you to love us just get off our backs just behave you don't have to convert but guess what by behaving by adhering to an alternative normative structure of the law you might just convert along the way King's imagining I think a trajectory or the possibility of such that St. Thomas Harkin to alter behavior over time as we come habituated to new practices now I want to acknowledge before I conclude one danger in the position I'm talking about and to do that I'm going to recall a famous exchange between Sigmund Freud and Albert Einstein on the question why war for Freud wars occur because people haven't sufficiently rearranged their interior furniture they're still driven too much by what Augustine would call the libido domanandi now in peaceful times this doesn't get put to the test the law restrains reckless and violent behavior but when the barriers are down more in a situation of chaos or when the law is in fact calling upon us to go forth armed Freud tells Einstein one learns who has truly been reconstituted internally and cannot find it in his or her heart to hate sufficiently to kill for Freud assumed wrongly I believe that wartime killing was always accompanied by hate and he says you're going to see that the numbers of people who have become truly moral is very few he and Einstein were two such people but said they're very few now Freud interestingly enough thought he was offering with psychoanalysis a secular substitute for Catholic confession but in the interiorizing of the subject he seems far more Puritan in many ways and I'm not using Puritan in a derogatory way here be that as it may I submit that the democratic wager is such that we cannot base our law and our politics and our social relations on the worst case scenarios which is what those given to this legalistic overreach tend to do all men are rapists all human beings are beasts underneath the patina of civilization is shockingly thin and all the rest of it we simply must make the wager most human beings most of the time are capable of minimally decent behavior even if from time to time they harbor murderous thoughts the law cannot get into those thoughts but the law will run amuck if it tries and we will all be suffocated and ironically as we think the law covers everything we may in fact let down our guard in how we actually form decent societies so I'm going to end on that note of Christian freedom that Bonifer lifts up Luther and St. Thomas as well I'm going to conclude with a scene from one of my favorite books and films to kill a mockingbird it's a parable about the legal thing to do and the right thing to do now this comes towards the end of the film as matters build to a climax the sheriff of Makeham County having identified the odd and reclusive boo Radley as a person who killed a drunk wicked man who was trying to murder lawyer Atticus Finch's two children but the sheriff is an intense conversation with Atticus the back story here I'm sure you all know it is that Atticus is defending an innocent black man accused of rape by the daughter of his racist drunk when in fact he's the person who's guilty of having beat her up and so on and the accused black man having been found guilty tries to flee and he's been shot dead so that's the back story here and then this vicious guy decides to punish Atticus for defending the man and goes after his kids Atticus sizing up the situation his son with a broken arm and bruises his daughter scout unhurt having been carried home by the rarely glimpsed recluse boo assumes that it is his son Jem who grabbed the knife wielded by Bob Ewell the drunk villain and stuck the knife into Ewell killing him during the wrestling match when Jem was trying to protect himself and his sister scout now as Atticus who's always a lawyer a very good one staying within the language of a moral view of the law and responsibility goes on in this vein the sheriff Tate running out of patience says your boy didn't kill Bob Ewell he identifies the shy wounded boo at that point sitting on the port swing with scout as the defender of Atticus's children and the person who dispatched Ewell the sheriff continues drawing upon a wellspring of theologically graced language as he speaks directly to Atticus I never heard tell that it's against the law for a citizen to do his utmost to prevent a crime from being committed which is exactly what he did but maybe he'll say it's my duty to tell the town all about it and not hush it up no what'll happen then all the ladies and make him including my good wife will be not going on his door bringing angel food cakes it means in prison because boo would have to be arrested and so on to my way of thinking Mr. Finch taking the one man who's done you in this town a great service and dragging him with his shy ways into the limelight to me that's a sin it's a sin and I'm not about to have it on my head I may not be much Mr. Finch but I'm still sheriff of Macon County and Bob Ewell fell on his knife good night sir now working with the sin crime distinction this humble small town sheriff in this situation makes the right judgment it is not of course the narrowly legal one and it strikes me that it's a judgment based on some grace and mercy bit of saving slack in the order if you will and I think we should never lose sight of some of these distinctions as we certainly do if we're pushing a heavy handed regime of legal moralism and utopian overreach of the sort that legally proscribes minutia doesn't trust people to handle most of their own affairs and undermines it seems to me moral responsibility and freedom in the process thank you very much thank you professor Elstein for those wonderful comments covered so much territory and did so eloquently clearly and succinctly in fact you had one more minute so you stayed within the time the WCTU was quite active with these classes of alcohol and the worms and the late Morris Abram was a speaker at our commencement ceremonies about 10 or 11 years ago and he grew up in Fitzgerald, Georgia a town about 150 miles south of here in the middle of the state and the same thing happened when he was 8 years old in the 3rd grade and the woman after the worm had died asked if any of the children had any comments and little Johnny was sitting in the back there were brogans that were two sizes too big and some hand-me-down pants that didn't even come to his ankles he was very thin this was during the depression and pale but he had a big swollen tummy like you'd see pictures of African children starving somewhere today and she called on Johnny and said oh ma'am I can't wait to get home I'm going to ask my mama to get me some whiskey because I've got terrible worms the moral of the story he was trying to tell I'm not sure of your audience before you start making demonstrations with this introduction about the problems of over legalism and positivism taken to the nth degree I think it only appropriate now that we turn to one of the caretakers of the law who takes care of all of our legal problems on a daily basis as a role as a United States circuit judge for the 9th Circuit Court of Appeals Judge John T. Noonan is one of the most highly respected and best known members of the federal bench in the United States and a great intellectual leader in the law his books on law include persons and masks of the law the luster of our country and narrowing the nation's power his books on the development of moral ideas include contraception bribes and a church that can and cannot change he's been a member of the editorial boards of the American Journal of jurisprudence the human life review the law and society review and the Harvard law review he's a recipient of many honorary degrees and in 1984 received the University of Notre Dame's lighter rate medal the highest honor bestowed on American Catholics please join me in welcoming Judge Noonan his birthday well thank you very much for that kind introduction and birthday wishes it's a great pleasure for me to be back here where I had the opportunity to teach five years ago and learn to appreciate the energy and the intelligence that had gone into the formation of the center and this afternoon I'm celebrating the center my title is one center, two center two centers many centers and my theme is the energy that has gone into this one center will expand by its power of exemplifying the general principle that combined the study of religion and the study of other topics now conventionally separated from religion well I would like to begin by focusing on the one center here and then go on to the other possibilities and to begin with an old Latin line Tantum Runiglio part of it Suadere Valorum such are the great evils that religion is able to excite so Lucretius generalized from the slaughter of Iphigenia on the altar at Arles in order that the Greek fleet might have a happy and hallowed start on its expedition against Troy I read this line in a class at Harvard College in 1944 and it has stayed in my memory a succinct reminder of the harms that can be done by religion or in the name of religion a Latin aphorist might have made a similar statement about law how many evils it has produced how many harms it does produce I need not set out the catalog of crimes affected by law or done in its name a similar saying could be coin of sex how many evils it has produced how many harms have been caused by it or are carried out to satisfy its demands the truth is that no universal human activity is totally benign if it is human people have repercussions and side effects and even central deficiencies that deform its practice and make the practice grotesque or hideous today atheists are making a stir in Britain in America only recently I saw on local television in San Francisco a program in which a noted British author lamented that in the time of Christ there had not been a lunatic asylum in Jerusalem the atheists armed themselves with a catalog of the crimes perpetrated by the religious or in the name of religion now evident message is if only superstition that is if only religion could be done away with the world would be safer and saner they ignore the crimes committed by such outstanding ex-Christians as Hitler and Stalin and such non-Christians as Chairman Mao and the Turkish rulers of Armenia and the fact that the 20th century the most secular in history was also the bloodiest in its destruction of human lives that same line of scripture that you heard recently quoted seems to me very apropos by their fruits you shall know them let us be sure what trees bear bad fruit at this time of atheistic attack it is peculiarly desirable that a scholarly center concentrate on two of the great enterprises of humankind war and religion and explore with equanimity the interactions between them and the deficiencies and difficulties that amide these two analogous efforts to make sense of and give order to the conduct of human life a center such as Emory that Emory has now triumphantly established not only permits the exchange of insights and fraternal correction study at the center enables the scholar to identify the large contribution of law to the edifice of religion and the many building planks from religion that have given structure of law are not the concepts of personal responsibility and of the human person theological innovations that have provided the foundations of our law does not the legal concept of agency permit a priest or minister to function in the name of God is not marriage in the traditions familiar to us both of legal and religious event the legal ceremony and legal effects in casing the pledge of persons to one another in a commitment for life a religious transcendence of the trans transitory flow of human emotion and expectations religion and law both deal in words it has occurred to me writing of the first amendment guarantee of free speech that all or virtually all religious activity could be subsumed under speech and given protection under this popular secular category as well as under the exact language of the amendment speaking of religion without words religion is a dumb show as for law how can it be communicated or applied by words law is not the policeman's baton is the ordinance he enforces the rules that restrain his own conduct and the verbal propositions that follow upon an arrest it is on account of this dependence on words that both religion and law have proved to be resistant to any deconstruction depriving words of their stability an ability to transmit with horrible clarity an idea from one human being to another in a word each discipline takes words seriously law and religion not only use words to shape stubborn realities they are each at least in our traditions broadly understood themselves shaped by realities in the case of law it is what human nature prescribes or permits in the case of religion revelation provides an additional structure in stability in each case the essential non-shakeable core at the center all the outer boundaries of change are not beyond argument each discipline has its legal fictions are an established category of law for example the fiction of immigration law that an illegal alien imprisoned in the middle of the country say in Kansas at Leavenworth that that illegal alien has not entered the United States and does not need to be treated as a person within the United States fictions are not a favorite term in theology but do not favorite images of theology fit the category in the most familiar of Christian prayers the father is firmly localized in heaven the force of metaphor carries the mind beyond the physical reality of space each discipline plays a part in the other consider the fate of law if as some jurists today try to think law could be identified as a mere reading of bloodless print and conscience does not control and activate the reader consider what religion would consist in if there were no authority no rules no cohesive bonds framing the community religion then could consist in Amazonian meditation it would not be a message binding generations and continents each discipline has made contributions to the other by the offer of models or methodologies Judaism and Christianity present a picture of authority that is a projection of the legal structure of an absolute monarchy God is a sovereign subject to no cabinet or parliament or court he makes laws and judges cases as he sees fit in Christian theology he has a royal court composed of angels and saints the latter act as courtiers asking the monarchs kindness on behalf of their friends or clients of them Mary is the chief advocate not in the sense of being a lawyer but of being an effective intercessor there are no lawyers in heaven drawn here on the projection of human legal images in fantasy the devil and saint Michael tussle for a soul but the ordered verbal battle of the courtroom is not a feature of heaven theology in turn has influenced the shape the state will bear God is sovereign so his will cannot be challenged the state is sovereign so it is by its very nature immune from suit it may graciously concede an area in which a court may hold it liable as the united states has done in the case of the federal claims act and in some cases of civil rights its agents may be held accountable on the theory that their offenses were personal not those of the office they held or the sovereign they served the sovereign state is even today a viathon of God on earth with the power to make its soldiers risk death and the power to remove criminals from life a power that today many Christian theologians reserve to God remains the state's godlike power of deciding when death shall occur aired that the state has the divinity to decide who shall count as human and to exclude from this category of protected lives the lives of those whose humanity is inconvenient to admit war and religion have again interacted in the discovery that bribery is bad Deuteronomy tells us that God in judging does not take a bribe the judges of Israel are instructed to do likewise the movement of thought appears to go from the divine case to the human but one might suspect that the making of this momentous discovery I don't know any true precedent but the making of this discovery began with consideration of human judges and ended by projecting the human on to the divine in any event has in a change of war and theology has left the puzzle perhaps better classified as a mystery the response of God just judge to the offer of his own son in sacrifice Shakespeare has explored the question and perhaps offered a key in measure for measure whose insistence where insistence in the letter of the law is trumped by an act of mercy that is redemptive it is a sign of their affinity that their practitioners mark each other by assigning their own professional colleagues to the other field when they disapprove of them thus Langdell was derided by lawyers as a legal theologian and I've harbored the same thought about the master of federal jurisdiction Henry Hart thus a long and constant tradition in theology has attacked theologians as legalistic when they stick too righteously to the letter of the law partners in the practice of phrasing commands differentiating situations in bringing realities under verbal control theologians and lawyers are quick to see them out in the other's eyes all those thoughts bear on this centre but celebrating it I urged the need for more centres that bring together religion in history religion in literature religion in science and I should like to begin with one with which I am familiar the centre for theology and the natural sciences CTNS which exists in connection with the graduate theological union in Berkeley generously funded by the Templeton Foundation CTNS has launched a series of initiatives to bring together scientists who are ignorant of or indifferent to or skeptical about theologians to bring them into dialogue with each other and it has encouraged theologians to take the punch in the areas that have never formed part of the curriculum of a divinity school and the enterprise has been comprehensive and ecumenical Charles Townes Nobel laureate in physics for his work in radar is a board member as well as Cardinal William Levada prefect of the congregation for the doctrine of the faith How Galileo would have appreciated such an opportunity and how much urban the fifth would have benefited from it consider what this centre might have accomplished if it added to its agenda a study of the new science aptly called the biology of the mind a study coordinating theological themes and the new data after all Augustine's analysis of memory is an unforgettable meditation on the working of this elusive power have modern theologians nothing to learn from or to contribute to the study of brain cells knowing that when these cells stop functioning thought itself stops is the knowledge that must play into any theological consideration of death and life after death I think I better check my time to be sure I'm staying within the John Whitting limits always I suppose is the danger that religion will think itself competent to make judgments depend upon data that religion does not have always there is the parallel parallel that science will think itself able to inform human beings as to who and sold them who guides their paths who has redeemed them and who awaits them the CTNS has to be a centre studying limits let me imagine a third possibility an institute in the study of religion and English literature with the acronym ISREL ISREL our literature and our religion for a long time went hand to hand and are not easily separable or understood apart from each other from the Beowulf poet the Wallace Stevens our literature has been drenched in Christianity from Jeffrey Chaucer the T.S. Eliot poets have been inspired by insights religious in origin and in import beginning in 19th century a current of doubt and agnosticism has run strong representative writers in this current from Matthew Arnold to Eugene O'Neill can scarcely be understood without an appreciation of where they came from and what shaped what they became and to take someone at the top of the literary tree William Shakespeare does he fit within this inviting area of combining religion and literature is it not he who in Harold Bloom's extravagant phrase as the inventor of humanity is not he the one saluted by Matthew Arnold others abide our question thou alone art free we ask and ask thou smile us and sit still in the light of Victorian agnosticism the supreme poet was supremely free of belief unbelievers themselves the critics would like to think that human beings can be free from any belief in their origin and in that there is a superior value illustrated by Shakespeare in being skeptical of saints and martyrs uncommitted to any communion or creed to the contrary to penetrate the plays and the poetry of our greatest dramatist and poet we must grasp the religious passions of age an age where eternal salvation was at stake as creedal commitment and where the wrong creed could lead to instant termination of life at the stake are on the scaffold if religion religious history and theology may illuminate English literature the study of literature complements consideration of avowedly religious texts without vicarious immersion in the passions displayed in literature the study of theology can be a dull and dry business anyone interested in religion needs to know how it is played out in creative minds as Jim Mulaney so eloquently said last night a fondness for literature will not make you good it will foster sentiments in a large empathy indispensable theological inquiry I could go on to enumerate possible centers of this sort combining theology with each European literature I could go on to a center for the study of religion and history but I do not need to multiply examples my point is evident the center here at Emory is a splendid specimen of the kind of study that goes beyond college courses and departments and with the care money and talent that have been invested here could be superbly replicated with vicarious variations throughout the scholarly spectrum thank you very much you also left some time on the table quite remarkable to have two in a row in which the blue cards did not even have to come out we have the floor now open for questions for a few minutes before we go into the afternoon break so if you have a question for either of our panelists or speakers please come to the microphone Bob Cochran from Pepperdine questions for Jean the phrases that you address legalistic overreach and legalistic moralism are phrases that I think in recent years have most often been attributed to the religious right in this country I was surprised you did not mention that group and I just wanted to see what comment you would give about the religious right well the examples that I am most familiar with as I suspect you suspect are those that take place within my own milieu often and that milieu is not dominated by the Christian right as I am sure you probably know so I think that we need to let me put it this way it seems to me that there is a mistake that is made ongoingly that associates a kind of legalistic overreach only with people who have religious convictions and purposes so often the legalistic overreach of the sort I was criticizing that comes from folks who have no such commitments are entirely secularist if not just secular but secularist I mean anti-religion in many cases in their outlook simply gets ignored it is as if we attribute from only to one group in the population namely those with religious convictions that they want to over moralize the public sphere in a certain direction and what I am suggesting is that in fact this tendency to overreach and we are going to have a longer discussion about this we want to proliferate examples is this an instance of that or not as the case may be and so forth certainly my early part of my paper was that this aspiration to a kind of totalism of control to a sort of purifying project comes in many varieties not exclusively one and that in focusing lopsidedly on those with Christian convictions and saying those are always the kind of people that want to impose their private views on us even though if they are openly publicly debating it and thinking about laws we won't debate that part of it but at any rate you take the point it seems to me important to point out that this tendency is not the exclusive purview of one particular group in contemporary American society and it is an old tendency and it is one with a long history and I think I pointed to some of the some of the strengths you know that lay behind the notion that we could aspire higher we could reach higher we could expect more from ordinary people and how that can turn perverse if you will and the expectations can either be set so high they are impossible to reach or alternatively you get that other side of the coin which is we've trusted people way too much we can't trust them you know we've got a force we've got to try to peer into the interstices of the soul and see if we can clean things up yes I'm not a distinguished professor of anything I'm a country lawyer this is always the prelude to a really difficult question this kind of thing you know Sam Irwin I detect some Sam Irwin coming well I I am a country lawyer from Mississippi not North Carolina I really love North Carolina in the light of this Professor Alstain that you said what do you make of Jesus and St. Paul having said that the law leadeth unto death and that it is grace which leads to eternal life is it not true that a covenant of grace offers the world something that any covenant of law can never offer well yes I mean certainly if you're talking about a covenant of grace and by contrast to that a kind of rigid adherence to a law that is perhaps lost whatever moral raison d'etre it had at the very beginning a kind of desiccated structure that one obeys in a kind of slavish manner certainly the contrast can be drawn rather starkly I think one of the things I was suggesting is that something of that covenant of grace or images of a certain kind of merciful approach that understands that everyone falls short of a certain perfectionist standard and that the law can recognize that as well and that many of the things we now take to be legalistic occasions can in fact be different kinds of occasions pedagogical occasions occasions for parents as they once did in my experience sort of sorted things out if their kids had a fight in the sandbox rather than suddenly having the whole apparatus of codes and officers and this and that thrown into the mix so I think one way to think about this might be we can't do that here but excuse me look at contrasting examples of societies that have gone through horrifically traumatic experiences and how they attempt to deal with that in the aftermath do you have something of the sort that the South Africans attempted with the truth and reconciliation commissions or do you launch into and I know there's some criticisms of it because there's always going to be an issue of is justice being done appropriately and so forth where does the justice mercy line go that or do you launch into a kind of purificationist project and you want to get every single bad person which would include for example in some of the post-communist societies post 1989 where hundreds of thousands of people collaborated with the regime out of fear they were getting a little bit of money they reported a few things on their neighbors does the law reach that far in fact the title for my talk was inspired by an experience I had when I was in Buenos Aires Argentina I made about five trips there in the late 70s early 80s it was at the time of the so-called dirty war the my first trip there was just as the third of three hunters were in power and then you had the restoration of constitutional government 1982 under Ralph Alfoncine and I had encountered and then got involved with a group called the Mothers of the Plaza de Mayo Los Madres and as I made subsequent trips the Mothers group had split in two precisely on these kinds of issues the one group of Mothers they called themselves the line of Mothers believe that they had a stake in this fragile new imperfect constitutional order and that you could not in fact because so many people were implicated including lots of 18 and 19 year old kids same age as some of their children who were tortured and disappeared murdered you could not punish everybody you could not do it and there was the other group that said we make we scorn any distinction between this new constitutional government and the hunters they're all in cahoots and we've got to go out and find everyone who had anything to do with it and punish them and she's dead now Renee Abelbaum Argentine Jew who had lost all three of her children to torturers when she was describing this and why she couldn't support that severe line she said that that is a search for a utopia of punishment a utopia of punishment and I thought that was a very haunting phrase you know about the cruelties that a certain quest for getting everyone who's guilty of anything can lead a society to so I think you could proliferate different kinds of examples where you've got the sort of covenant of grace and you've got the law and how do you sort that out and how do you sort out the repertoire that's available internal to a society for how to deal with these issues Desmond Tutu told me in a conversation that he thought the reason South Africa had been able to move the direction that it did was because the vast majority of Africans are Christians and he said that's not true if every society has gone through this kind of thing so sorry I'm sure you didn't think your question would unleash this torrent but sorry I fear that we do live in a closed and rule-based society here is John Whitty coming on us again and that Portia is not in the chair and so I'm going to have to call in to this session but invite those of you who do have questions forward and ask the panelists directly and Frank Alexander will now give us some more directions about next steps in order to get back on schedule as close as we can we will take a break now we will keep the break to no more than 15 minutes we will begin the next session here by 405 so please take a break but join me in thanking both of our panelists one more time the preceding program is copyrighted by Emory University