Practicing Faith and Practicing Law

[1] My topic for the conference is the practices of faith and the practice of law, and I begin by offering a story that presents these two sets of practices in sharp relief. I will then make some general remarks on the subject of practices in general, what practices are and do, and then conclude with some remarks about the specific practices of law and faith, where they overlap, where they conflict.

[2] And I do all of this, I must say at the outset, with some trepidation, knowing rather more about the practices of faith than the practice of law. However, I married into a family of lawyers and Jesuits, experts in constitutional and canon law, and can only hope to have acquired some familiarity with the practice of law by osmosis.

I. A conversation with a lawyer
[3] But to the story. It is a story with which we are all familiar, but probably never examined from the perspective of the respective practices of law and faith. I submit the story as a study in the practices of law and faith.

[4] You’ll find it is one of the few conversations Jesus has with a lawyer. The conversation presents two formidable rhetoricians at their lawyerly best; it’s in scripture because it tells all of us – whatever our profession or calling – something crucial about the practice of faith. We won’t understand the gravity of that insight unless we appreciate that only a conversation with a lawyer would have provoked it. You will recognize the story as the parable of the Good Samaritan, and I invite you to listen with fresh ears.

Just then a lawyer stood up to test Jesus. “Teacher,” he said, “what must I do to inherit eternal life?” He said to him, “What is written in the law? What do you read there?” He answered, “You shall love the Lord your God with all your heart, and with all your soul, and with all your strength, and with all your mind; and your neighbor as yourself.” And he said to him, “You have given the right answer; do this, and you will live.” But wanting to justify himself, he asked Jesus, “And who is my neighbor?” Jesus replied, “A man was going down from Jerusalem to Jericho, and fell into the hands of robbers, who stripped him, beat him, and went away, leaving him half dead. Now by chance a priest was going down that road; and when he saw him, he passed by on the other side. So likewise a Levite, when he came to the place and saw him, passed by on the other side. But a Samaritan while traveling came near him; and when he saw him, he was moved with pity. He went to him and bandaged his wounds, having poured oil and wine on them. Then he put him on his own animal, brought him to an inn, and took care of him. The next day he took out two denarii, gave them to the innkeeper, and said, “Take care of him; and when I come back, I will repay you whatever more you spend.’ Which of these three, do you think, was a neighbor to the man who fell into the hands of the robbers?” He said, “The one who showed him mercy.” Jesus said to him, “Go and do likewise.” Luke 10: 25-37

[5] The lawyer is probably a lot like yourselves: practitioner in two crafts: discipleship and law. Probably this lawyer is an expert in Jewish law, because he begins his interrogation of Jesus with a distinctly religious question: “What must I do to inherit eternal life?” And Jesus, deploying a familiar courtroom tactic, deftly turns the question back on him: “Well, you’re a lawyer: what does it say in the law?” And the lawyer recites the whole of the Torah standing on one foot: “Love the Lord your God with all your heart and soul and strength and mind, and love you neighbor as yourself.” Jesus commends him: “Do this and you shall live.”

[6] First exchange: examination, cross. We are ready for a second exchange. The lawyer does not fail us: “But who is my neighbor?” The lawyer does not get a direct answer this time either. Instead of answering a question with a question, as he did in the first exchange, Jesus now responds with a story – in legal terms, we could call it a case. But two things are interesting about Jesus’ choice of response.

[7] 1. First, he responds with a parable. This parable is not an allegory, like the parable of the sower (Mark 4:3-9; Matt. 13:3-9; Luke 8:5-8) Some of the seed falls on the path and is snapped up immediately by birds; some falls on rocky ground, springs up quickly, then dies; some falls into thorns and gets choked; some falls on good soil and brings forth grain a hundredfold. The story has been passed on as the parable of the sower, but it’s neither about a sower, nor is it strictly speaking a parable. I’ve always thought the word “sower” ought to be somehow qualified. What we have in this story is either a myopic sower or a prodigal sower: someone who either badly needs glasses or has seed to spare.

[8] But my point here is that the story is not really a parable, but an allegory. Under pressure from his thick-headed and uncomprehending disciples, Jesus readily supplies the meaning: the seed that falls on the path stands for someone who hears the word and does not understand it, because the evil one, whom the birds stand for, snatches it away. The seed that falls on rocky ground stands for one who hears the word and receives it with joy – but is so rootless that he/she endures only for a while. The seed that falls in thorns stands for, etc. In an allegory, everything stands for something else. One thing corresponds directly to another: A = X, B = Y, C = Z. Allegories illustrate meaning; parables create it. The story of the prodigal sower is an allegory; the story of the Good Samaritan is not.

[9] Nor is the Good Samaritan story really a fable, which supplies meaning in an aphorism or moral appended at the end, like the story of the wise and foolish bridesmaids. Ten women are waiting into the night for the bridegroom make his appearance: five have oil for their lamps, five do not, and Jesus tells his listeners what the meaning is at the end: “Keep awake, for you know neither the day nor the hour.” (Matt. 25:13) This is what fables do: they tell you what you are to conclude, lest there be any doubt. Fables summarize meaning.

[10] Now we have to conclude that a lot of what we have come to regard as a “parable” is really either an allegory or a fable in drag, because a lot of these stories Jesus tells either illustrate meaning or summarize, both of which deliver the point rather directly, with no questions and no room for ambiguity. Nothing remains to debate, nothing is left to the imagination. You know what you have to do.

[11] Parables, on the other hand, create meaning, and for that reason, they require work, the work of thought, imagination, and application. The story that Jesus presents to this lawyer is a parable. Jesus isn’t speaking to his clueless band of disciples, who need explanation, nor the largely illiterate crowds, who clamor for a soundbite. He’s speaking to a lawyer, and he offers a parable.

[12] New Testament scholar C.H. Dodd offers probably the most comprehensive and adequate definition of a parable: “Parable is a metaphor or simile drawn from nature or common life, arresting the hearer by its vividness or strangeness, and leaving the mind in sufficient doubt about its precise application to tease it into active thought.” Precise application in the case of parables is not summarized by a moral at the end, nor is it given by simply outlining what stands for what. Meaning in a parabolic world is gained by imagination and active thought. It demands a search for patterns, for similarity amidst difference.

[13] In responding to the lawyer’s question with a parable, Jesus offers in effect another case, with contours similar to the one the lawyer investigates. It is a case Jesus intends the lawyer to receive as relevant precedent, another case with details similar to the one at present, but not exactly replicating them. Nothing stands for anything else, nor can the moral of the story be stated simply. Here, there are similarities that need to be grappled with, and that requires the work of thought, imagination, and application.

[14] Indeed, in responding to this lawyer’s question, Jesus appeals to habits of thought and imagination embedded in the practice of law. He’s speaking to a man who is used to noticing similarities between seemingly dissimilar cases. He’s speaking to a man whose stock in trade is finding patterns. Mark Twain said: “History doesn’t repeat itself, but it does rhyme.” What is the pattern that the parable of the Good Samaritan inscribes? And how can I live that pattern in my own life, that is, if I too would be a neighbor?

[15] This whole exchange is in the Bible because it says something about discipleship to us – centuries later in a vastly different time. It marks a point where the practice of law and the practices of faith intersect: both require a disciplined habit of thinking analogically. Looking for patterns, catching the rhyme, finding similarities amidst difference: it’s a habit of the legal mind. Jesus here presents it as a habit disciples ought also to cultivate, if they would be faithful.

[16] 2. The second point to notice is that Jesus reverses the lawyer’s question and turns it back on him. The lawyer wants to know who is the neighbor? It is an appropriate question, even a good question – but it is also one you can ask at arm’s length. Jesus poses a more urgent, even intimate question: Are you yourself a good neighbor? After all, this is the question the lawyer should have asked, particularly if he seeks eternal life: “How can I be a neighbor? How can I act with compassion?”

[17] The lawyer poses an abstract, seemingly objective question – who is the neighbor? – only to be thrown a question that interrogates him: “Which of these three – priest, Levite, or Samaritan – was a neighbor to the man who fell into the hands of the robbers?” The lawyer answers: “The one who showed him mercy.” Jesus responds: “Go and do likewise.”

[18] I love the response, because it is exactly the kind of response to make to a lawyer. In making it Jesus actually answers the question that initiated the entire exchange: “What must I do to inherit eternal life?” More importantly, Jesus answers the question in a way that a lawyer would be well-equipped to understand. And in so doing he provides the rest of us disciples with a valuable framework for practical moral reasoning.

[19] I want to focus for a moment on this framework, which is familiar to anyone involved in the practice of law. I only wish it were more familiar to the rest of us, as we struggle to understand the impact of scripture on the practice of faith.

[20] A key aspect of practical moral reasoning is a focus on the particulars of any situation. The devil may be in the details – but you may catch a few angels in the net as well! Attend to details. The parable of the Good Samaritan is thick with detail. Indeed, a practitioner in the Ancient Near East would have automatically supplied detail that is not as apparent to us today. For example, the man lying by the side of the road is stripped of all clothing, we are told. Then as now, clothes were an important mark of social status, education, ethnicity, country of origin; without them a passerby could not tell whether the man were a Jew, a Samaritan, a foreigner of some other ilk.

[21] Another detail: the man was “left for dead” – and might have even been dead. Touching a corpse would have meant ritual defilement under Jewish law: the priest and Levite judged they could not afford that. Another detail: Samaritans were hated by the Jews, which makes this story and the conversation Jesus conducted with a Samaritan in John’s gospel all the more irritating. People in the original audience of the Gospels would have a fresh memory of a Samaritan prank on Jews gathered for a festival at the Temple at Jerusalem. Samaritans had thrown a corpse within the Temple walls, defiling the entire complex and requiring it to be ritually purified. It was off-limits for the festival. Samaritans were not well-liked in Israel. Another detail: inn-keepers were notoriously untrustworthy, and the arrangement the Samaritan makes with this one shows deft handling. As arranged the inn-keeper stands to profit if and only if he renders the best care. Nor can he take the money and run: the Samaritan will pay the balance of his debt upon returning. Details drive the story forward.

[22] In relating them Jesus suggests that details matter in the process of moral deliberation. I’m sure the lawyer in the story and the lawyers in this room would agree. You can’t do moral deliberation by bludgeoning the opposing side with abstractions. Details matter in coming to any resolution.

[23] Another crucial aspect of practical moral reasoning is attention to patterns. How can we catch the rhyme? That’s Jesus’ invitation in his final piece of advice: “Go and do likewise.” He invites the lawyer to catch the rhyme in the parable – find the pattern in this story and live it out in your own life.

[24] Indeed, perhaps the whole of the teaching of Jesus supplies a taxonomy of cases which offer a certain patterning to the moral life – if we have eyes to see. For example what is the pattern behind the observation repeated throughout the gospels of Jesus: “He was a glutton, a drunkard, a friend of tax collectors and sinners.” This is not intended as a compliment, nor is it the first thing people go to when probing scripture for moral counsel. But it says more when understood in the context of the Ancient Near Eastern etiquette, where the people you ate and drank with were your friends, and your friends were the people you ate and drank with. Jesus quite simply ate and drank with all the wrong kinds of people, at least in the eyes of those speaking. But in so doing he showed a kind of solidarity with these folks that challenges our notions of charity, which can often be anonymous, distant, and removed. Jesus pushed beyond charity toward friendship. He doesn’t merely give money to the poor, food to the hungry, drink to the thirsty; he eats with them, drinks with them, gets to know them. Jesus pushes beyond charity to friendship. We ought to go and do likewise.

[25] That leads me to the final important aspect of the process of moral deliberation: application to the present. The kind of legal reasoning Jesus uses with this inquisitive lawyer proceeds by analogy. The command “Go and do likewise,” calls for a kind of analogical reasoning. What do lawyers do so well but think analogically, examining legal precedent for patterns that recur, sifting similarities and differences for common contours, applying them in a precise way to the present.

[26] “Go and do likewise.” Jesus doesn’t say go and do exactly the same thing; he also doesn’t say go and do whatever you want. He avoids both the strict moral geometry which dictates blind imitation and the tyranny of preference. Instead, Jesus calls for the lawyer to make the merciful response that would be appropriate to his own situation and context: the Samaritan in the story showed mercy; the lawyer in his context should do the same. Mercy – the biblical word is more visceral, signifying a kind of gut-wrenching compassion for another – is the fitting response to the parable Jesus tells. Anyone who would “inherit eternal life” should act in kind.

[27] Focusing on particulars, attending to patterns, applying them analogically to the situation at hand: these are the stock in trade of the practice of law. In highlighting them in this conversation with a lawyer, Jesus talks to the lawyer in his own language. He speaks to him in the particular contours of a story, inviting him to bridge the concrete and general through a finely honed process of analogical reasoning. In reading this conversation with a lawyer, we learn that Christians need training in these legal habits of mind for the life of discipleship. The practices of law shape the practice of faith.

II. Practices: what they are . . .
[28] I’ll suggest a preliminary definition of practices as a cluster of activities that define a way of life. Because both law and faith are practices, they demand and sustain certain ways of life that are public, communal, and fiduciary. I want to examine each dimension in turn.

[29] A. Both practices are public: You don’t practice law – or faith – in private; indeed, in their very nature, both are public practices. An illustration, from the practices of faith: In reforming the church, Luther also had to relocate it. He wanted to move it away from popes, prelates, and cathedrals. But where was the church then to be found? Luther located the church in a series of very public practices: “Where you find people baptizing, where you find people preaching and hearing the Word, where you find people praying, praising, catecheizing their young, where you find people forgiving, where you find people following the way of the cross, there you find the church.” Not a place any longer, nor a papal institution, Luther relocated the church in a series of public practices. Where you find people doing these things, you will find the church. These practices constitute the church, which is the body of Christ in the world.

[30] This is public witness. The other thing to notice is how being part of the body of Christ engages the bodies of believers. Praying, praising, catechizing, preaching, listening, baptizing: these all involve the body. In a way practices inscribe membership in the body of Christ on the bodies of the believers. That’s what publicity is all about. Practices of faith gather Christians into special places and make them do distinctive things: eat together, drink together, serve the neighbor.

[31] Practices of law are equally public – and I don’t mean the big cars, settlements, and houses. I refer rather to the bodily markings: making judges wear wigs – even in Kenya, robes. There’s something somatic, bodily in practices: they involve the body and allow the body to mentor the soul.

[32] B. Practices are communal: As Luther put it: wherever you find people baptizing…. Practices do not describe Lone Ranger idiosyncrasies; they delineate group actions, repeated over time and in community. You can’t be a lawyer or a disciple any way you want. Canons of conduct mark each profession, and they are enforced by the expectations of those inside and outside the community. Part of what sustains a practice is the sheer press of others doing it. Practices involve entrance into a certain kind of community, and there are – that bodily part again! – rites of initiation. Think of baptism, which literally marks the body with oil and water, claiming this person as “child of God,” charge of the community. Think of passing the bar. The communal aspect of practices sets up dynamic of mutuality: the community both requires and enables us to be practitioners, whether of faith or of law.

[33] C. Finally, this follow from the prior point. There are fiduciary dimensions of any practice. Networks of promises sustain communities, both within the profession and as the profession relates to the larger world. Look at the network of promises that emerge in a baptismal liturgy, promises that knit together infant, community, and the God they worship. It will take a lifetime to live into those promises and a community to sustain them. And the community makes promises of its own, pledging support, nurture, and instruction. If we thought carefully about the promises that we make during a baptism, it might be a harder service in which to participate. These are dangerous promises.

[34] Look at the implicit promises that descend upon someone who passes the bar: admitted to practice in a particular state, uphold the constitution of the United States and the body of statutory law. Human communities feed on fiduciary relationship, and perhaps Jewish philosopher Hannah Arendt has recognized this more clearly than anyone else. Promise-making curbs against basic human unpredictability. Because of “the darkness of the human heart,” promises ensure that we will be the same people tomorrow that we are today.

[35] Fiduciary relationship sustain human community. Think of the four crucial service professions, which we require for human flourishing: the clergy, medicine, education, and law. Each tends a dimension of life crucial for the common good: the clergy tend to the care of souls; medicine, the care of the body; education, the instruction of the mind; law, the protection of justice. People entrust these professions with these important aspects of the common good.

[36] That’s why it is so devastating when any one of these professions is eliminated or violated. We see fall-out today in the Roman Catholic church’s sex scandals. Part of the outrage is the violation of trust: instead of caring for souls, abuser priests have have damaged them. Or look at the country of Guatemala, a beautiful landscape with a horrific political history. This is a country that does not enjoy the rule of law, and judges and lawyers who seek it find themselves running for their lives. Both these examples illustrate the fiduciary dimension of professions like law. Society expects certain competencies and skills, certain habits of mind and heart from practitioners.
. . . and what they do. . . .

[37] Practices are activities that compose a way of life, and they have public, communal, and fiduciary dimensions. What do practices do?

[38] 1. Practices create and sustain relationships. In their public, communal, and fiduciary dimension. both the practice of law and the practices of faith are about relationships. You may be many things to many people, but in the law office, you are professional to a client. In your role as lawyer you seen as someone who’s pledged to uphold the laws. There’s an old story about a rabbi who asked another to recite the whole of Torah while standing on one foot. “You shall love the Lord with all your heart and soul and mind and strength, and you shall love your neighbor as yourself,” (Mt. 22:38-39) was his reply. These exhortations depict a triadic relationship bound with love that embraces self, God, and community.

[39] I didn’t exit graduate school as a theologian, but I knew the practices of being a theologian. Over time and in community, as I did the kinds of things that a theologian does, I became a theologian. After all, you don’t become a great chess player, by thinking about it on the way to work each day.

[40] Each of the service professions is directed by a transcendent value, whether God, justice, health, or wisdom. That transcendent value orients the profession, so that it doesn’t merely collapse into mere wish fulfillment. As a lawyer you aren’t merely a “hired gun.” There are certain cases and certain clients you won’t take, because they conflict with your sense of what the profession ought to be about. In the same way, there are certain things you make time for, perhaps a certain proportion of pro bono work, because these practices embody what the profession does stand for.

[41] 2. Practices tutor the emotions. Take a time-honored cultural practice of watching TV. Tune in during Saturday morning, kiddie-time television, and think about the emotions tutored here. A fourth-grade class in Portland took notes: there was a violent act every 60 seconds – kick-boxing or punching, shooting or slashing. What habits are encouraged in this? Philosopher Sissela Bok suggests the following: fear, aggression, desensitization to violence and desire for more. Practices have the potential to transform or deform the emotions. Just as sinews connect bone to bone, emotions connect people one to another. They are the connective tissue of human society: they can build up or tear down – that’s why they need to be tutored.

[42] Practices tutor the emotions. For this reason, St. Benedict laid emphasis in his rule on the opus Dei, the daily office of prayer. Within the course of a week, monks would move through the entire psalter. Imagine the impact this had on the emotions. The psalmist finds room in a relationship with God for everything: rejoicing and despair, consolation and abandonment, judgment and mercy. It is a rich emotional palette, including perhaps some less favorite colors. Grafting oneself into the world of the psalms both evokes and tutors the emotions, which bind a community to God and to one another.

[43] 3. Practices foster perception. They create a certain field of vision. Philosopher Iris Murdoch – whom I hope will be remembered by her rich novels and philosophical works, not just for the tragic descent into Alzheimer’s portrayed in by Judi Dench in Richard Eyre’s powerful film “Iris” – wrote that “we can only choose within the world that we see.” She underscores the importance of perception, and the power of practices to alter that.

[44] If the world that we see is the Hollywood set of a spaghetti western people with guys in white hats against the guys in black ones, then our foreign policy choices will reflect that. If the world that we see has a history in which the United States has played a more ambiguous role, then our foreign policy choices may be more humble, even tentative.

[45] But it’s important to worry about how the practices of law and the practices of faith frame the world. To a pickpocket, all the world’s a pocket. Think about how virtues and vices would be recorded in the world a pickpocket sees. To a Christian, particularly a Lutheran, I suspect all the world’s a neighbor, with hand stretched out for the kindness of the neighbor. To a lawyer, how would the world be framed: as a network of adversaries or potential adversaries? As a community of people struggling for justice?

[46] Enough about practices, what they are and do. To summarize, they are activities that compose a way of life, and as such they have public, communal, and fiduciary dimensions. As such, they create and sustain relationship, they tutor the affections, they shape perception.

III. Where the two practices converge – and collide
[47] In conclusion, I’d like only to point out a few ways in which these two practices – law and discipleship – converge and where they might collide. Convergences first.

[48] Deliberation is common to both the practice of law and the practice of faith. Indeed, one of the first tasks of this Division for Church in Society when the ELCA came into being, was to publish a study guide on moral deliberation: “The Church as a Community of Moral Deliberation.” I think we learn from law a finely-honed practice of moral deliberation that allows scripture to fund our moral imagination, so that we find patterns that might apply analogically to daily life in this 21st century. Scripture functions then as a flexible ruler, as Aristotle put it. After all, how else could you gauge the circumference of a rock.

[49] We latter-day disciples would profit from such training. It might move us from the sort of biblical literalism that approaches every moral problem by first asking: “What does the Bible say about it?” Most of the questions we face today aren’t referenced in scripture at all: genetic cloning; the scientific categories for sexuality – homosexuality, heterosexuality, bi- and transgendered sexualities; etc. Yet if we could focus on the particularities, both in biblical situations and in our own, if we were looking for patterns – and not just “thou shalt” and “thou shalt not” pronouncements, if we could think analogically about how those patterns might apply today, we might find a great deal of guidance.

[50] Some rules will always stand, taboos against murder, incest, exploitation. As Aristotle put it, some things are always prohibited. With murder or adultery, it’s not a matter of finding the right time, place, person, and motive. But as always, most of life happens in those great grey areas, governed by no stark choices. And most of the world is populated, not by good guys and bad guys, but people who are mixed – and very often mixed-up. We occasionally prevaricate; we often dither; we do good things for bad reasons. If you’re an ethicist, it’s quite discouraging, unless you’re in ethics for remedial purposes, as I am.

[51] Then, both the practice of law and the practices of discipleship are ineluctably service professions. Both attend to the needs of the neighbor, and both respond out of a knowledge of the neighbor’s situation.

[52] A final convergence: both practices are inescapably formative. Both aim at shaping certain ways of seeing the world and being in it.

[53] And this may lead to a real divergence: there may be different aims in that formation. Back to Jesus and the lawyer. The lawyer acts out of his training: he’s skilled at noticing things, calibrating similarities and differences, perceiving patterns. But he also reveals an adversarial model of relating to others. He wants to test Jesus; he wants to “justify himself,” the text reminds us. The adversarial model may still be part of legal formation. A swimming friend, who is a high-powered litigator and married to another high-powered litigator, announced in the locker room that she was moving to another part of the practice. “We can’t have two litigators in the family,” she claimed. “Besides, I just can’t switch gears that quickly. I can’t be the kind of person I need to be in the courtroom, and then come home and be Mom, nice to my kids and my husband.” She couldn’t easily shake the power of her professional formation, as she entered other areas of her life.

[54] Practices, whether of law, discipleship, or swimming, shape people. They have the power to form them; they have the power to deform them and to transform them. A central question becomes: what kind of people are we being shaped to be? I have to say the band of disciples has its own share of competitive, adversarial, and self-justifying folks. Law doesn’t have a corner on those dispositions. I hope the formation engendered in discipleship is contoured by the kind of compassion shown not by a Christian, nor even a Jew – but a Samaritan – at least in the parable Jesus relates.

[55] Where we lodge our primary identity is crucial. Feminist Andrea Dworkin speaks to the importance of identity: “The first identity…is the identity of primary emergency.” A Jewess in Nazi Germany might be disprivileged as a woman, but she would be sought out and slaughtered as a Jew. Being a Jew, then, would be her first identity, “the identity of primary emergency.” For Christians, whatever their profession, the identity of primary emergency” is being a Christian. That ought to orient all other facets of our lives.

Resources

Dorothy Bass (ed), Practicing Our Faith, San Francisco: Jossey-Bass, 1977.

John R. Donahue, S.J., The Gospel in Parable, Philadelphia: Fortress Press, 1988.

Albert R. Jonsen and Stephen Toulmin, Abuse of Casuistry: A History of Moral Reasoning, Berkeley: University of California Press, 1988.

William C. Spohn, Go and Do Likewise: Jesus and Ethics, New York: Continuum, 1999.