Category Archives: justice

Did Jesus “Do What the Bible Says”? Some thoughts on Jesus, Biblical Formalism, and Problem of Indeterminacy

Tomorrow morning, our Sunday School class at SPUMC is going to talk about a Sabbath healing story. This particular story is located in John 9, but certain elements of this story are present throughout the gospels.

As I have been working through this text during the last few days, I have been noticing a parallel between the disputes that are at play in the Sabbath healing stories, and some rather foundational questions – very similar in nature – that have been playing out in legal philosophy during the last few decades. I have also been thinking about what that means in terms of our approach to “following” the Bible.

The recurring theme in most of the Sabbath healing stories is this: Jesus heals someone on the Sabbath, which action – in turn – draws sharp criticism from the religious leaders who observe it, since Exodus 20:10 forbids people from any form of “work” on the Sabbath. Most of these texts are dripping with irony: the leaders’ criticism – directed at what ought to be recognized as an astounding sign of Jesus’ divine authority – seems narrow-minded and, as John 9 emphasizes in particular, “blind” to the reality of what is happing in front of their own eyes.

One of the things that intrigues me about these texts, however, is that neither Jesus nor the authors of the texts seem to have any interest in denying that Jesus is, in fact, doing “work.” To the contrary, Jesus often characterizes his actions in healing people as work. Similarly, in responding to his critics, he usually points out how the critics themselves will sometimes find the Sabbath law to be inapplicable in a particular circumstance, thereby justifying their own “work” on the Sabbath. In other words, Jesus is admitting that he is acting inconsistently with the text of the Sabbath law, but he is also nevertheless suggesting that he is in compliance with the law itself.

The disagreement between Jesus and his critics is what modern legal philosophers would characterize as a conflict between purposive and formalist approaches to law. Or, in slightly cruder but more accessible terms, it is a conflict between “spirit” and “letter” of law.

One of the most perplexing problems for jurists (and, I expect, theologians) is the problem of indeterminacy. That is, what does one do in a situation where a stated rule of law is obviously inapplicable to a particular circumstance? HLA Hart, for example, believed that – because language is “open textured” – it can never clearly and completely address every unforeseen circumstance. Thus, the law will be indeterminate. A legislature can say, for example, that no vehicles should be in a public park. However, eventually, a question may arise about roller skates or toy cars, or three and four-wheeled bicycles, and a judge will have to decide whether those various items count as “vehicles.” Other philosophers, such as Lon Fuller, even go so far as to say that judges should look the particularities of individual cases and simply ignore the plain text of the law where it seems inconsistent with its intent.

One of the more famous examples of the  “purposive” approach is S v. Jordan, a case that was decided in South Africa’s Constitutional Court in 2002. In that case, a group of prostitutes objected to a law banning prostitution on the grounds that it violated the South African constitution’s guarantee to a right of privacy. The court had previously recognized that sexual activity was protected under the terms of this provision. However, the Court rejected the argument that, in this instance, sexual activity was private, on “purposive” grounds – it said that sexual “privacy” was appropriate only to allow people to “establish and nurture” relationships. Because such relationships were not being formed in the context of prostitution, the court concluded, there was no right of privacy to protect in this circumstance.

But, like Jesus, advocates of purposive law – such as Fuller – are not without their critics. How can we know what a legislature is thinking when they make a law? they ask, and furthermore, how are people supposed to predict what judges will decide if they could ignore the text of the law based on their own whimsical notions of the “meaning” behind the law? Such critics, known as “formalists” because of their insistence that judges stick to the form of the law itself, make a number of arguments that I think are quite compelling in the context of civil law.

So here is the conflict between Jesus and his critics: the critics, somewhat hypocritically, take the formalist position, insisting that “no work on the Sabbath” means “no work on the Sabbath.” And Jesus seems to take the opposite position – going so far as to say that the text of the Sabbath law can be ignored when it seems inconsistent with the purpose of the Sabbath law.

Jesus, in other words, is saying that you can’t approach the Mosaic law (the “Bible” of his day) from a formalistic perspective. The law of Moses, though divine in origin, is – nevertheless – subject to the same problems of open texturedness and indeterminacy as more modern laws against vehicles in parks and sex trafficking, and therefore must be applied (or not applied) in light of different circumstances.

These Sabbath healing stories, it seems to me, ought to have a profound impact on the way we go about reading and responding to the Bible. In short, I do not think that the Bible is a step-by-step instruction manual on how to go about living our life, but – even if it is – it is simply not enough to say that “because the Bible says to do (or not do) x, we must therefore do (or not do) x in every situation.”  Some level of interpretation and discernment that transcends the text itself is always necessary.

I realize that abandoning a formalistic approach to the Bible is disturbing to people. But I am not, of course, the only one who is saying this. Christian Smith is making a similar argument, for example, in The Bible Made Impossible. I am also not saying that there is some easy alternative to Biblical formalism that will resolve the issue. There isn’t. However, I do think, as Smith does, that a strong Christology (or belief in the nature and authority of Jesus)  is a good place to start. I also think that it is helpful to guide our interpretations of particular, narrow texts in accordance with the broader, more sweeping theological themes of scripture, but that issue will have to wait for another post.

What is Justice?

image I had a chance to read Michael Sandel’s “Justice: What’s the Right Thing to Do?” over the Summer. Sandel’s book, which is based on his popular course of the same name at Harvard, was so fantastic that I’m still trying to digest/process the whole thing. I also had a chance, during the latter part of the Summer, to survey the thoughts of several progressive theologians on the same subject while preparing to teach a Sunday school class .

Two things struck me from these experiences. First, Sandel’s views of justice and those of scripture run along a remarkable parallel (a thought that I’ll save for later posts). And second, that the concept of justice is so closely associated with the judicial process that it has become almost impossible to talk about it within its proper context.

If you ask someone to describe "justice,” you will likely be told something like this:

  • Justice happens when a judge or jury goes through the process of deciding a case.
  • Justice happens when I get what I deserve after I sue someone in Court.
  • Justice happens when the drunk driver goes to prison.
  • Justice happens when a murderer on death row is executed.

We’ve come to associate justice with a judicial event. When that event happens, justice has occurred. Do these events have anything to do with justice? Well, yes. Justice requires procedures that govern the conduct of lawyers, judges, and juries. It also involves individuals getting a “just” result as a result of these procedures. But, because we live in a culture that is obsessed with individual rights and liberties (and all the ways they can be wronged!), we struggle to think of justice on a more collective level.

In short, the question of justice is this: How should a society distribute the things that its members value? Goods, services, power, and rights can only exist in limited quantities. Justice is concerned with they way in which these things are allocated.

This is a particularly important distinction when it comes to scripture. When the Bible talks about God’s desire for justice, it is not primarily speaking of a divine preference for correct outcomes to lawsuits and criminal prosecutions. Rather, it is expressing God’s desire for human societies to allocate their resources in a particular way.

I consider “social justice” and “distributive justice,” phrases that often get bandied about among Christian leaders and scholars, to be redundancies. There are no other kinds of justice. When a specific judicial proceeding is concluded, I don’t think we should ask “Was justice done?” This question presumes that justice can be accomplished a single court proceeding. Rather, I prefer to ask: “Was justice served?” This question makes it clear that courts, judges, lawyers, and juries exist as a part of a larger picture in which everyone is supposed to give and receive in accordance with a set of ideals. When people get a judicial outcome that is consistent with those ideals, the societal interests of justice are served. However, the demands of justice are by no means satisfied thereby. To accomplish that purpose, we must be concerned with larger political and cultural issues that transcend the judicial system.

I don’t think it is possible for Christians to have useful conversations about justice without this perspective.

New York Court Says “No” to Gene Patents

A federal court in New York has ruled that patents on human genes associated with breast and ovarian cancer are invalid. There is some reason to believe that the ripple effects from this decision could undo a legion of pending claims of patents on other human genetic material.

This is good news to me. I find the potential for commodification of human DNA to be very disturbing. It seems dehumanizing. On some levels,it is comparable to human trafficking, but I don't have much time tonight, so I'll have to flesh out that thought on another occasion.

Patent Trolling as Moral Hazard

Slashdot just posted this rather unflattering take on Intellectual Ventures, a company that has been set up by an ex Microsoft executive. The company is being labeled as a "Patent Troll," a derogatory term that has been popular in the technology sector for the last few years. It refers to companies that are primarily in the business of buying intellectual properties and then suing for infringement of those properties.

I don't know a lot about Intellectual Ventures, so I won't comment one way or the other on how well the Patent Troll tag sticks, but I am both fascinated and repulsed by the concept.

To explain why, a little history is in order.

As the modern world developed, it became apparent that the system of capitalism and the development of increasingly useful technologies was going to be heavily dependent on people's ability to develop and protect new ideas. If someone spends hundreds of thousands of dollars, or simply hundreds of hours, to come up with a cheaper way of producing a better product – say – a kitchen appliance like a microwave oven, they will want to know that they can then benefit financially from their idea. If someone, for example, can come along and copy the newer, better way of manufacturing microwaves, then the profitability of spending money and/or time to come up with a new idea is compromised. As such, there is a need to "protect" the new idea from being "stolen" by someone else.

Out of that need, the idea of intellectual property began to flourish. As a result of various developments in the law, people can now own not only land, homes, cattle, and personal property (like furniture). They can also own ideas: books, designs for machines, images, photographs, music, etc.

At the heart of the intellectual property system is  a process that allows a person to register their ideas (copyright holders, by the way, do not have to do this – but most other forms of IP require it). If multiple people come up with an idea over time, it is usually the first person to register it that gets the rights to it. Those rights can then generally be protected for decades. They can also be bought and sold to the highest bidder.

When it is functioning at its best, the intellectual property system encourages innovation. People will invest millions of dollars in efforts to discover a breakthrough cancer drug, for example, only if they know that they will get a chance to benefit from the sale of that drug once their research is complete. Society also benefits, once the drug goes into production, because the drug would likely have never existed had the law not protected the IP rights of the investor.

Patent trolling, however, defeats the purpose of – and therefore abuses – IP laws. The troll goes about buying up ideas wherever it can find them – bankruptcy sales, declining firms, individual inventors or programmers who cannot put together the capital to develop their product. Then, it does nothing but sit and watch for someone else to use the ideas. Hundreds, even tens of thousands, of ideas are not developed. Products are not made. Medicine is not advanced. No one benefits from the idea. It remains stagnant.

Then, when someone actually begins to use the idea (i.e., actually undertakes to use the idea to benefit society), the troll strikes with cease and desist letters and, if necessary, litigation. The bigger the troll, the more dangerous. Patent lawsuits are expensive – sometimes costing in excess of $1,000,000. It is much easier to pay the troll a few hundred thousand than it is to fight the lawsuit, even if you have a good argument that you haven't violated its patent.

Now, ironically, we have a situation where the very systems that were designed to create innovation are being used to thwart it. Who wants to develop the next generation of food technology – possibly something that will benefit the developing world – when it appears that a troll may be holding onto the same or similar idea? The barrier to entry into the marketplace – where people will benefit from your idea – just went up considerably. Not only do you have to pay money to develop your idea. You also have to pay the troll.  Everybody loses.

Patent trolling, then, strikes me as activity that is perfectly legal, but morally problematic. There may be ways that it is beneficial to people other than the trolls themselves, but if those benefits exist, I can't see them. To me, it is little more than a game that favors wealth and that rewards overly aggressive, soulless litigation.

Throwing the First Stone, Part 3

This is the third and final post in a series involving the story of the woman (allegedly) caught in adultery. In the initial post I described how the case against the woman under the Mosaic law was problematic for at least two reasons. First, the Mosaic law appears to treat adultery primarily as a crime that a man commits against another man by violating his wife. The wife of the victim can be treated as a sort-of accessory to that crime, but it seems odd to encounter a case for adultery without producing the perpetrator himself, particularly when capital punishment will result from a conviction. The situation is all the more problematic because the crime of adultery requires the man/perpetrator to be "caught." It is difficult to imagine a situation where a man is "caught" committing adultery, and then only the woman/"accessory" is brought up for conviction. These problems present an immediate sign that something is not right here.

In the second post, I argued that Jesus seems to have "decided" the case based on an odd procedural problem. The Mosaic law is intensely interested in protecting the innocent from false accusations, particularly where the death penalty is at issue. For that reason, any case for a capital crime must be supported by two witnesses (in this case, witnesses who "caught" the perpetrator/man in the act). Furthermore, those two witnesses must be the first to "raise hands" in the act of stoning the convicted. Thus, when Jesus determines that the one without sin should "cast the first stone," he is declaring that in the absence of witnesses to initiate the execution, the only persons who would be qualified would be those without sin. Even the woman's accusers appear to recognize that they are disqualified, since – if nothing else – it is obvious that they are using this woman to advance an agenda to "trap" Jesus.

To close things out, I want to make a brief point about what I think this text is ultimately telling us.

The story of women being punished for sexual misconduct while there are no corresponding consequences for the male participants is not new. Last month, for example, CNN ran a story about three women in Malaysia, a country governed by Islamic law, who were caned for the crime of adultery. Not surprisingly, the story said nothing about the men who participated in the act with these women. The sad reality is that communities of all sorts, faith communities included, will tend to single out the wrongs of the most vulnerable among them for the harshest treatment. It is a form of scapegoating that assures the community that "evil" is being dealt with, while the most powerful maintain their positions (and vices) of privilege. Sexual sins, particularly the sexual sins of women, have always been the scapegoaters' crime of choice. As my friend Richard Beck points out, even our language of sexuality, which reserves certain harsh words for sexually active women that aren't equally applicable to their partners ("whores," "sluts," etc.), betrays the way we think of women's sexual conduct as more "evil" than men's.

However, if we stop there, I think we miss the main point.

"Is no one left to condemn you?" Jesus asks after the woman's accusers, disqualified from initiating the execution, have left.

"No one, sir." she replies.

"Then neither do I condemn you." he retorts. "Go. Sin no more."

Jesus' ultimate act is not one of deconstructive criticism for its own sake. It is an act of liberation.

Later in John 8, Jesus picks up on this theme when he says: "If the son sets you free, you will be free indeed." (And yes, I'm aware that the story of this woman was added some time after the original text was written – still, I find the decision to insert the story in this part of the text to be particularly appropriate in light of the theme of the chapter.)

What Jesus has done in this story is extraordinary to me. His accusers showed up expecting to pit his known tendency to show mercy and compassion to "sinners" against the Mosaic law. They expected that he would take an anti-law stance to save the woman's life, making him appear to be "soft" on the Mosaic law. But Jesus instead becomes a hyper-legalist, insisting on enforcing everything down to the last letter, an approach that sets the woman free.  Moses and mercy are satisfied in one, sweeping, brilliant phrase.

Interestingly, this makes Jesus himself a sort-of "user" of scripture for his own purposes. In reviewing McLaren's A New Kind of Christianity, I have written about the ways people tend to "use" the Bible for self-justifying purposes. But what I didn't talk about – and what McLaren doesn't really address either – is the positive side of the way the Bible can be "used." Just as it can be "used" for selfish purposes, it can also be used for liberation of the oppressed.

So that is my take on John 8. It calls us to stand against, and expose, hypocricy and scapegoating, for sure. But it reminds us that the ultimate purpose of such acts is to liberate the victims of those systems from the judgment and condemnation that is continually heaped on them. In doing this, we don't necessarily have to set ourselves up against the legal and procedural mechanisms that are used for oppression (though sometimes it might be necessary). Instead, we can appropriate them!

Throwing the First Stone, Part 2

[This is the second post of three on the opening verses of John 8, in which Jesus is asked by the Pharisees to decide the case of a woman allegedly caught in adultery.]

One of the things that judges have to do – more frequently than you might think – is decide how to fill in gaps in the law. Politicians love to preach about how judges ought to interpret the law and not make law, but the practicalities of sitting on the bench from day-to-day don’t allow for such a luxury. Rules of procedure, for example, are often very explicit about deadlines and requirements for plaintiffs and defendants, but lawsuits don’t always involve parties that fit neatly into one of those two categories. Sometimes there are third party defendants – people who are brought into the suit by the defendant. Sometimes there are intervenors – people who claim a stake in the outcome of the case, even though they are not the plaintiff. Judges often have to decide how to apply rules that are written for plaintiffs and defendants in light of odd situations.

That is just one example. Gap-filling by judges goes on all the time, because legislatures and rule makers can’t and don’t anticipate every possible situation that could end up in Court.

When I assess the situation in John 8 in light of the legal issues that are at play, I think that a problem of how to fill in a very critical gap is lurking in the subtext.

stoning_22_5011[1]In the last post, we left off with a problem. Here we have this woman who was allegedly caught in adultery, but there are no witnesses. In essence, the Pharisees are asking Jesus to assume that she is guilty, and to decide only half of the case – the question of whether her crime merits capital punishment. The answer, they think, seems obvious, since the Mosaic law indicates she should be executed.

But this is where things get sticky.

In Jesus’ day – even in Moses’ day – capital punishment was taken very seriously. There is nothing just about executing an innocent person, so it wasn’t something that was done on a whim. If you couldn’t make out a case against someone for a capital crime, then you didn’t execute them merely on someone’s suspicion.

To accomplish the objective of protecting the innocent, the law of Moses included several procedural safeguards – principles that worked like our modern day codes of evidence and criminal procedure. Two safeguards, in particular, are outlined in Deuteronomy 17:

  1. You can never execute someone based on the testimony of a single witness. There must be at least two witnesses. This helps to protect the innocent from an individual who might make a false accusation because they have some personal axe to grind. In the case of the crime of adultery, this means that two witnesses must actually “catch” a man in the act.
  2. While the entire community is to participate in the execution – by throwing stones at the guilty until they are dead – the first ones to “raise hands” against the guilty should be the witnesses. Again, this prevents a situation where someone can make a wild, questionable accusation, and then stand at a distance while someone else undertakes the messy work of killing. If you’re going to bring someone to court because they have committed a capital crime, then you need to think about what you are about to say – you have to be ready to get your hands bloody.

In both cases, the law is guarding against people who might allow suspicious motives to distort their accusations. We must have two people who are willing to say that they witnessed the crime, and that are sufficiently convinced that it merits death that they themselves will initiate the execution.

It is here – in Deuteronomy 17 – that we find the gap in the law. Even if Jesus agrees that this woman should be executed – there is still the issue of how she should be executed. Without witnesses, there is no one to initiate the execution – no one to cast the first stone.

I don’t think its a coincidence that Jesus steps into this gap, taking up his defense of the woman. When he says “let him without sin cast the first stone,” he may be more generally asking if they have sinned, but it strikes me that he is also asking them: Who among you is certain enough about what happened here to step into the shoes of the ones who supposedly know what happened? Do YOU have pure motives here? Are you willing yourselves to put this woman to death? Are you without sin in making this accusation?

To those who are looking on, the Pharisees now look like fools. Everyone knows they are here to make a point with Jesus, not to decide a law case. Could they truly, in good conscience, pick up stones now and kill her, with no case at all to support her guilt?

In a sense, Jesus is simply calling their bluff in a way that requires them to abandon their case.

In the next/last post on John 8, I’ll finish up with some more general reflections on sexuality, sin, and blame-shifting.

Elisa Padilla on the Gospel in American Culture

Image[1] In an earlier post, I mentioned that I was reading The Justice Project, a collection of essays on the subject of justice, published through Emergent Village. In the last chapter of the book, Elisa Padilla, one of the its editors, makes a plea for churches in the emerging culture to be about more than alternative forms of worship (t-shirts instead of suits, guitars instead of organs, etc.). She is worried that emerging communities may just use different wrapping with the same content.

She puts it this way:

…if your gospel is only about yourself, your spirit, your converts, and your words, and in practice your highest loyalty is to your flag (which means you do not mistrust your authorities nor question the news you are fed), you can easily live in peace, accumulate wealth, and call it a blessing from God. In your naiveté and passivity you can support racism, land expropriation, inequality, abuses of power, wars for oil, nuclear build-up, economic exploitation, contamination, and all kinds of injustice, and still remain a good Christian, because your too-small gospel has nothing to say to the issues of your times.

Padilla challenges emerging faith communities to detach the gospel from these kinds of consumer-oriented systems of belief, systems that are offered by many Evangelical church leaders. And while she limits her remarks to communities that are consciously inserting themselves within the emerging culture, I think she has also laid out an important challenge for twenty-first century American churches in general – come to grips with how the gospel has been distorted by Americanized ideals about individualism and economic freedom and start preaching it for what it really is.

Its a very good ending to a very interesting and challenging book. I hope the book makes its way into the libraries of a lot of Christian leaders, both within and outside of the emergent conversation.

The Justice Project

justiceprojectcover[1] I’m about half-way through The Justice Project, a 2009 volume containing a collection of essays on the topic of justice within the context of Christianity. Thus far, I have been impressed by the depth of the analysis, as well as the variety of perspectives that have been brought to bear on this subject.

Today, for example, I read a Chapter by Joseph Myers on the contributions that political conservatives can make to the justice dialog (his emphasis is on the need to avoid dependency and co-dependency while also acting compassionately toward the poor). It is not often that a voice like Myers is invited to the table in connection with a discussion of this nature – and he has made an important contribution.

In the coming weeks, I’m going to post about some of the essays from the book, so stay tuned. And, in the meantime, if you have any interest/involvement at all in its subject-matter, this book is well worth your time and money.