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Law Natural: Its Family of Metaphors and Its Theology

Published online by Cambridge University Press:  25 September 2015

Milner S. Ball
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Extract

Thomas Shaffer once observed: “[I]t is better to bear the discomfort of trying to be a [believer] and a lawyer at the same time than it is to pretend that the symbols of faith have nothing to do with law offices, law schools, or courts.”

I am among the many who have been instructed and moved by Professor Shaffer's example and am, therefore, among those who know something of the contagious discomfort of being a believer and a lawyer at the same time. It is a condition out of keeping with the times. But those whose vocation is faithfulness at the same time that their profession is law or politics have no choice. “Divine discontent” it is sometimes called.

I make no claim for my remarks except that they arise out of this discomfort. Specifically, I am troubled by American law's systemic injustice—i.e., its capacity for victimization, its fallenness. My way of responding to the discomfort, of trying to do something about it, is the act of rethinking which Karl Barth described as “the ‘primary’ ethical action.” The “transformation of thought,” he said, “is the key to the problem of ethics, for it is the place where the turning about takes place by which men are directed to a new behavior.”

Type
Colloquium on Law, Metaphor, and Theology: A Frances Lewis Law Center Colloquium
Information
Journal of Law and Religion , Volume 3 , Issue 1 , 1985 , pp. 141 - 165
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1985

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References

1. Shaffer, , The Moral Theology of Atticus Finch, 42 U. Pitt. L. Rev. 181, 223 (1981)Google Scholar. See also Shaffer, T., On Being a Christian and a Lawyer (1981)Google Scholar.

2. This point is developed in Ball, Book Review, 51 Geo. Wash. L. Rev. 309 (1983) (reviewing Kairys, D., The Politics of Law (1982)Google Scholar); Ball, , Cross and Sword, Victim and Law: A Tentative Response to Leonard Levy's Treason Against God, 35 Stan. L. Rev. 1007 (1983)CrossRefGoogle Scholar.

3. Barth, K., The Epistle to the Romans 436 (Hoskyns, E. trans. 1933)Google Scholar.

4. Id.

5. I have treated this topic in Ball, , Of Rocks and Dams, PVC and Poetry: Conceptual Metaphors for Law, 36 The Ga. Rev. 7 (1982)Google Scholar.

6. Shaffer, T., In the Mountain, Social Change, vol. 1, No. 3, at 8 (1971)Google Scholar.

7. On metaphor in law see generally White, James Boyd, The Legal Imagination (1973)Google Scholar. For comment on the specific metaphors, see Fuller, L., Legal Fictions (1967)Google Scholar; Horwitz, M., The Doctrine of Objective Causation, in The Politcs of Law 201 (Kairys, D. ed. 1982)Google Scholar; M. Tushnet, Corporations and Free Speech, id. at 253.

8. Lakoff, G. & Johnson, M., Metaphors We Live By (1980)Google Scholar. (Much of my analysis of metaphor depends upon Lakoff and Johnson.)

9. This subject is addressed in Ball, , Law of the Sea: Expression of Solidarity, 19 San Diego L. Rev. 461 (1982)Google Scholar. The most complete review of the law of the sea is also the most recent and most accessible: Sohn, L. & Gustafson, K., The Law of the Sea in a Nutshell (1984)Google Scholar.

10. Grotius, H., The Freedom of the Sea 8, 7-9, 28 (Magoffin, R. trans. 1916)Google Scholar.

11. J. Selden, Of The Dominion, or, Ownership of the Sea, author's preface, unpaginated (M. Nedham trans. 1652; reprint 1972). (Actual quote is “by the law of Nature of Nations, is not common to all men, but capable of private Dominion or proprietie as well as the Land. …” “an inseparable and perpetual Appendant of the British Empire. …”)

12. Proclamation No. 2667, 3 C.F.R. 67 (1943-48 Comp.), reprinted in 59 Stat. 884 (1945); Proclamation No. 2668, 3 C.F.R. 68 (1943-48 Comp.), reprinted in 59 Stat. 885 (1945).

13. United Nations Convention on the Law of the Sea, done at Montego Bay, Dec. 10, 1982, 21 I.L.M. 1261 (1982), U.N. Sales No. E.83.V.5 (1983).

14. Id., Art 136 at 1293; Declaration of Principles Governing the Sea-bed … Beyond the Limits of Natural Jurisdiction, G.A. Res. 2749, 25 U.N. GAOR Supp. (No. 28), U.N. Doc. A/8028 (1970).

15. This material is addressed in Ball, , Good Old American Permits: Madisonian Federalism on the Territorial Sea and Continental Shelf, 12 Envtl. L. 623 (1982)Google Scholar.

16. The Federalist NO. 46, at 315 (J. Madison) (J. Cooke ed. 1961).

17. Tushnet, , Deviant Science in Constitutional Law, 59 Tex. L. Rev. 815, 824–25 (1981)Google Scholar.

18. See Christo, Running Fence (Gorgoni, photographs; Tomkins, chronicle; Bourdon, narrative (1978)).

19. Id. at 35.

20. Id. at 152.

21. North Slope Borough v. Andrus, 642 F.2d 589, 606 (D.C. Cir. 1980).

22. Cronon, W., Changes in the Land: Indians, Colonists, and the Ecology of New England 53 (1983)Google Scholar.

23. Id. at 137-38.

24. Id. at 130.

25. Id. at 138.

26. Augustine, The City of God, bk. xviii, ch. 2, at 610 (M. Dods trans. 1950).

27. Id., bk. xv, ch. 5, at 482.

28. 2 W. Blackstone, Commentaries *2.

29. Some of the literature on public trust is cited in Ball, , Environment, Natural Resources and Land Use, 35 Mercer L. Rev. 147, 160–66Google Scholar & nn.104-07 & 127 (1983). Joseph Sax wrote the constitutive article, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471 (1970)CrossRefGoogle Scholar.

30. See Johnson, , Public Trust Protection for Stream Flows and Lake Levels, 14 U.C.D. L. Rev. 233 (1980)Google Scholar.

31. McCarthy, , James Watt and the Puritan Ethic, Washington Post, 05 24, 1981, at L5, col. 1Google Scholar.

32. Id.

33. It can be argued that Watt's metaphors are traceable to the Puritan conception of having been sent on an errand into the wilderness. See Miller, P., Errand into the Wilderness (1956)Google Scholar. On President Reagan's beliefs, see Herbers, , Religious Leaders Tell of Worry on Armageddon View Ascribed to Reagan, N.Y. Times, 10 21, 1984, at 15(N), col. 1Google Scholar; Armageddon View Prompts a Debate, N.Y. Times, Oct. 24, 1984, at 1(N), col. 1.

34. Isaiah 11:6 (Revised Standard Version).

35. Allen, W., Without Feathers 28 (1972)Google Scholar. Grant Gilmore prophesied that “(t)he better the society, the less law there will be. In Heaven there will be no law, and the lion will lie down with the lamb.” Gilmore, G., The Ages of American Law 111 (1977)Google Scholar. I am not so sure. The lion and lamb will lie down all right, but is there to be no law between them? Is law a function only of social pathology? Will we rise above law? In Heaven there will be no law as bulwark. But what of law as medium? Won't it be plentiful, and, like the agreeable medium air, utterly transparent?

36. I do not mean for the image of the Peaceable Kingdom to stand for or be confused with nostalgia for what Leo Marx described as “the once dominant image of an undefiled, green republic.” Marx, L., The Machine in the Garden 6 (1964)Google Scholar. The contrast I want to achieve is not that between the machine and the garden or that between urbanization and pastoralism but between a stifling, monolithic politics and a politics of hope and diversity. I intend my elaboration of the Peaceable Kingdom to be one of Marx's “new symbols of possibility.” Id. at 365.

37. Frye, N., The Great Code xviii–xix (1982)Google Scholar.

38. Before his imprisonment, Bonhoeffer had written several substantial, complete pieces. Much of his later development of theological categories and new departures never reached final form. The most thorough study of Bonhoeffer—the definitive work—is E. Bethge, D. Bonhoeffer (E. Mosbacher, P. & B. Ross, F. Clarke, & W. Glen-Doepel trans. 1970). I have relied upon it.

39. Harvey Cox says that religion is reviving in the contemporary world. He is right. He also rightly says that “religion is not always good.” Cox, H., Religion in the Secular City 20 (1984)Google Scholar. The biblical sagas are critical of human religiousness. Just now, as Cox says, theology must interpret the biblical story in a time “when the rebirth of religion, rather than its disappearance, poses the most serious questions.” Id. Cox writes from within a tradition in which the biblical faith and theology are distinguished from religion and religious practices. I concur in that distinction and underscore it.

Karl Barth explained very carefully that religion is man's fruitless effort to justify himself before a capricious picture of a highest being of his own imagining, K. Barth, 1 Church Dogmatics, pt. 2, at 280-361 (Thomas & Knight trans. 1956), a God who is “the tedious magnitude known as transcendence, not as a genuine counterpart, nor a true other … but as an illusory reflection of human freedom, as its projection into the vacuum of utter abstraction.” Barth, K., 3 Church Dogmatics, pt. 4 at 479, (Mackay, A., Parker, T., Knight, H., Kennedy, H., & Marks, J. trans. 1961)Google Scholar. In this way of thinking, religion is unbelief. Theology is the discipline that tries to state and understand the meaning of the particularities of the biblical Word. It is not concerned with the universalities of religion except critically.

40. Natural theology is the way of trying to say that we know about God from nature, proving the existence of God from the created order. I think natural theology is a dead option. There can be no knowledge of God apart from his revelation of himself. There is no independent line of access. Knowledge of God like knowledge of the creation comes only from the Word of the biblical story. Instead of natural theology and its devices for reading God from the book of nature, I use the term “theology of the natural.” By it I intend a qualitatively different enterprise. A theology of the natural attempts to understand nature Christocentrically. See infra note 41. If natural theology tries to prove the existence of God, a theology of the natural tries to prove the reality of man. As Barth said: “It is primarily the creature and not the Creator of whom we are not certain, and … in order to be certain of him we need proof or revelation.” K. Barth, supra note 39, vol. 3, pt. 1, at 6.

41. It was Barth who introduced Christocentric thinking about nature. Near the end of his life, Barth struck up a correspondence with the poet Carl Zuckmayer. In the course of it, Barth had occasion to state the sum of his understanding of the doctrine of creation. In conversation, Zuckmayer had evidently made reference to worshiping God in the presence of Alpine trees “and even in the form of the bark” of a tree. A Late Friendship: The Letters of Karl Barth and Carl Zuckmayer 12 (Bromiley, G. trans. 1982)Google Scholar. Barth was dubious. Poetic license would not warrant “worshipping God in the bark of a tree.” Id. at 13. To worship God in this way, i.e. in nature, may be permissible, but not directly or unqualifiedly. Using Zuckmayer's figure, Barth explained that “‘God in the bark of a tree’ is God the Creation.” God the Reconciler “is certainly one and the same as God the Creator, but he is the God who truly acts and speaks only in Jesus Christ. It is to him and him alone that worship truly belongs…. and to God in the bark only indirectly and inconclusively and mediately.” Id. at 13. At stake in this distinction are important differences for the understanding of nature, ourselves, and God. What Barth insisted upon was that the creation—God in the bark—is not an independent source of knowledge or being. The source can only be revelation, the Word who is the subject of the biblical sagas. There is no correspondence or similarity between the being of man and the being of God.

42. Bonhoeffer, D., Letters and Papers from Prison 58 (Bethge, E. ed. 1967)Google Scholar.

43. Id.

44. See E. Bethge, supra note 38, at 623. Bonhoeffer's notion of nature as penultimate is a rejection of both Christian radicalism and compromise. It proscribes radicalism which, “whether it consists in withdrawing from the world or in improving the world, arises from hatred of creation. The radical cannot forgive God His creation.” Bonhoeffer, D., Ethics 87 (Bethge, E. trans. 1955)Google Scholar. It also rejects compromise which “always springs from hatred of the Ultimate.” Id. at 88.

45. D. Bonhoeffer, supra note 44, at 90.

46. As I understand theology, it is pre-eminently political. Of course, politics played a prominent role in James Watt's thinking. The difference lies in which kind of politics is compatible with which kind of theology. In most important respects, Watt's conceptual thinking is that of the Moral Majority. I do not think in terms of either morals or majorities, but of ethics and minorities. The difference is quickly and easily identifiable: poor people. The tradition from which I speak is a theology and politics of the poor. It has to do with their liberation. In this I follow Paul Lehmann. Lehmann demonstrates that the activity of God is politics and that the activity of politics is authentic human community. As Lehmann points out, the biblical story is told in political images: The gathering of a people, the formation of a kingdom, the coming of a messiah, etc. In this story, God is seen to be doing politics, i.e. “what it takes to make and to keep human life human.” Lehmann, P., Ethics in a Christian Context 347 (1963)Google Scholar. See also id. at 74-87. For an exposition of such a politics, see Lehmann, P., The Transfiguration of Politics (1975)Google Scholar. The discernible outcome of this activity is a redeeming community—a polis or koinonia. The chief characteristic of the community is deliverance of the poor. The poor are “all those without status and without power in the world (who constitute) the society that God has called into life for the humanization of human life.” Id. at 258. See also Gutierrez, G., A Theology of Liberation 287–306Google Scholar (“Poverty: Solidarity and Protest”) (1973); Cox, H., Religion in the Secular City 147, 166–67 (1984)Google Scholar (God as “el dios pobre”).

47. D. Bonhoeffer, supra note 44, at 102.

48. Id. at 60.

49. Bonhoeffer, D., 3 Gesammelte Schriften 477Google Scholar. I have used the translation of these lines suggested by Paul Lehmann, who called them to my attention. Of course, talk of power must be understood in the light of Bonhoeffer's treatment of powerlessness. Taking responsibility and, therefore, power seriously requires that we understand the biblical images for the exercise of power, namely the little child of Isaiah or the crucifixion in the New Testament, and those are images of powerlessness, the quintessential images of the natural person.

50. See E. Bethge, supra note 44, at 782-93; Lehmann, P., Faith and Worldliness in Bonhoeffer's Thought, in Bonhoeffer in a World Come of Age 25, 41–45 (1968)Google Scholar.

51. Ricoeur, P., Time and Narrative x (1984)Google Scholar.

52. Id. at xi.

53. P. Lehmann, (Transfiguration), supra note 46, at 258. See also id. at 7-8, 10, 24, 248-49.

54. See E. Bethge, supra note 38, at 789-790.

55. Id. at 786. Bonhoeffer was also aware of those occasions when proclamation is necessary and silence is wrong. For example, it was necessary for the Confessing Church in Germany to declare her faith over against the total state and to declare her solidarity with the Jew. Bonhoeffer's appreciation of silence did not arise from cowardice or the dodging of ethical responsibility. It had much to do with the issues I discuss in the text and with his commitment to let action speak for itself.

56. D. Bonhoeffer, supra note 42, at 122.

57. E. Bethge, supra note 38, at 829. After his comrades assured him that they wished him to do it, Bonhoeffer conducted the worship service.

58. Id. at 787.

59. Id.

60. For discussion of the secrecy of the Gospel of Mark, see Kermode, F., The Genesis of Secrecy (1979)Google Scholar. On “covert communication” and modern fiction (and their bearing on law), see Weisberg's, Richard splendid book The Failure of the Word (1984)Google Scholar.

61. D. Bonhoeffer, supra note 43, at 155.

62. Id. at 196.

63. Id.

64. “[O]ur relation to God is a new life in ‘existence for others’”; “so the transcendental is not infinite and unattainable tasks, but the neighbor who is within reach in any given situation.” Id. at 210.