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Echoes of the love command in the halls of justice

Published online by Cambridge University Press:  24 April 2015

Mark B. Greenlee
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Extract

Hidden in plain sight in hundreds of judicial opinions is an extraordinary principle—love your neighbor as yourself. At first blush the idea of its application to our legal relations seems odd: This is a matter of morality, not legality. But the biblical command to love neighbor as self has exerted an important influence upon the decisions of American courts. While more frequently excluded from application, the love command has found expression in a wide range of cases. From criminal to civil procedure, from torts to contracts, from employment to family disputes, neighbor-love has been a vital part of American jurisprudence.

This article will highlight the application of the love command to legal disputes by courts, as well as provide a brief overview of the biblical texts and scholarly legal commentary dealing with the love command. Its main purpose is descriptive—pointing out what we haven't noticed—but it is also normative—we have missed something important—neighbor-love is not out of place in the courtroom. It has been, and should continue to be, applied to legal relationships by our courts.

Type
Articles
Information
Journal of Law and Religion , Volume 12 , Issue 1 , 1995 , pp. 255 - 270
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1995

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References

1. This article does not explore the related question of the role of religious beliefs in judicial decision making. There is a substantial body of literature on this topic. See, for example, Idleman, Scott C., The Role of Religious Values in Judicial Decision Making, 68 Ind L J 433 (1993)Google Scholar; Levinson, Sanford, The Confrontation of Religious Faith and Civil Religion: Catholics Becoming Justices, 39 DePaul L Rev 1047 (1990)Google Scholar; Carter, Stephen L., The Religiously Devout Judge, 64 Notre Dame L Rev 932 (1989)Google Scholar; and Greenawalt, Kent, Religious Convictions and Political Choice (Oxford U Press, 1988)Google Scholar. Judges standing within my own neo-Calvinist tradition would view themselves as called to apply their religious beliefs to their judicial office and would view as religious the most basic, nondependent beliefs of other judges, whether they are recognized as “religious” or not, as playing an inevitable part in their own decision making process. While it is my firm conviction that the love command should be applied to the jural task, the cases reviewed herein may or may not have applied it in an appropriate manner. However, investigating the appropriate parameters of the utilization of religious beliefs in judicial decision making will have to wait for another day.

2. Lev 19:18.

3. The Hebrew word rēa, translated here as “neighbor,” usually refers to a fellow Israelite. Bromiley, Geoffrey W., ed, 3 The International Standard Bible Encyclopedia 517 (W. B. Eerdmans, 1986)Google Scholar. Sometimes rēa’ is translated as “fellow Israelites,” Lev 25:46, or “fellow Hebrew,” Exod 2:13. While neighbor-love is usually reserved for members of the covenant community, one text expands its application to foreigners: “The alien living with you must be treated as one of your native-born. Love him as yourself, for you were aliens in Egypt. I am the LORD your God.” Lev 19:34.

4. Disputes between covenant members were to be judged impartially. Lev 19:15. Bearing false witness against a neighbor was prohibited. Exod 20:16. Defrauding or robbing a neighbor was also prohibited. Lev 19:13. Restitution was prescribed for wrongs done a neighbor. Exod 22:9. Damages due a bailee in the event of loss of property were set forth. Exod 22:7-8, 10-12. Degrees of responsibility in the event of causing the death of a neighbor were distinguished. Deut 19:4-13. The manner of obtaining collateral for a loan, prohibitions on interest for loans, and respect for property boundaries between neighbors were also addressed. Deut 19:14, 24:10-11. All of these passages deal with the relationships between neighbors. They are taken from sections of the Old Testament (Exod 20:22-23:33, Deut 12:1-26:9, and Lev 17-26) which many scholars view as legal in character. See Bromiley, , 3 Bible Encyclopedia at 82 (cited in note 3)Google Scholar.

5. There was ongoing debate within Judaism concerning the definition of “neighbor” in the love command of Lev 19:18. Most interpreters limited the obligation to loving one's fellow Israelite. The Qumran community adopted an even more limiting interpretation, applying it only to members of their own community. Jesus referred to another popular approach that excluded personal enemies from its application: “You have heard that it was said, ‘Love your neighbor and hate your enemy.’” Matt 5:43. However, some Jewish teachers favored an expansive definition, extending the commandment to all fellow human beings. See Bromiley, , 3 Bible Encyclopedia at 518 (cited in note 3)Google Scholar. See also, Brown, Colin, ed., The New International Dictionary of the New Testament Theology 255 n 2 (Zondervan Publishing House, 1976)Google Scholar.

6. Luke 10:25-37.

7. During the New Testament period, the Jews despised the Samaritans. They were a mixed race, once pure Jews who intermarried with invading races after the division of the kingdom, who set up their own place of worship at Mount Gerizim, competing with the temple in Jerusalem. See Douglas, James Dixon, ed, The New Bible Dictionary 1131–32 (Inter-Varsity Fellowship, 1962)Google Scholar. A glimpse of the disdain with which Jews held Samaritans is captured in the Samaritan woman's reaction to Jesus asking her for a drink: “Jews do not associate with Samaritans.” John 4:9. See also, Luke 9:51-53.

8. While Jesus did not directly answer the lawyer's question, there is little doubt that Jesus is extending the term “neighbor” as widely as possible; he is applying it to one's fellow human being. This interpretation is supported by the Greek word plesion used in the passage which is translated as “neighbor.” It was not restricted to a fellow countryman but applied to any fellow human being who was nearby. See Bromiley, , 3 Bible Encyclopedia at 518 (cited in note 3)Google Scholar. Additional support for this interpretation comes from Jesus' extension of the love command even further in Matt 5:44 and Luke 6:27, demanding love even for enemies.

9. Matt 9:19, 22:39; Mark 12:31, 33; Rom 12:10; Gal 5:14 and James 2:8.

10. Matt 22:40.

11. Matt 7:12. See also Luke 6:31.

12. Furnish, Victor Paul, The Love Command in the New Testament 56–57 (Abingdon Press, 1972)Google Scholar.

13. This view is aptly summarized as follows:

The unity of the law, the central law of love and service to neighbor, as well as love for oneself, is addressed to the heart of man. This service of love by man is expressed variously in his different offices and in his acts which are qualified by diverse structural law spheres. In all his differently qualified acts in which all his various functions are present but in which one or another predominates, man is living out of the central command of love and service given to his heart …. There are diverse norms for the differing expressions of this central, unifying command of love.

Steen, Peter J., The Structure of Herman Dooyeweerd's Thought 300 (Wedge, 1983)Google Scholar. See also, Thielike, Helmut, 1 Theological Ethics 316–11 (Fortress Press, 1966)Google Scholar and Thielike, Helmut, 2 Theological Ethics 630–31 (Fortress Press, 1969)Google Scholar.

14. McNeill, John T., ed, Institutes of the Christian Religion 1503 (The Westminster Press, 1960)Google Scholar.

15. Niebuhr, Reinhold, An Interpretation of Christian Ethics 101 (Living Age Books, 1956)Google Scholar. “Equality is always the regulative principle of justice; and in the ideal of equality there is an echo of the law of love, ‘Thou shalt love thy neighbor as Thyself.’” Id.

16. Grey, Thomas C., The Legal Enforcement of Morality 157 (Random House, 1983)Google Scholar. This comment appears in the context of Grey's discussion of the lack of a duty to rescue those in peril on the part of those able to render aid: “It is no coincidence that the parable of the Good Samaritan is reported to us as Jesus' answer to a lawyer's question. The lawyer, seeking an interpretation of the new commandment ‘Love thy neighbor as thyself,’ asked ‘Who is my neighbor?’ Jesus gave the parable as his answer and extracted the lawyer's agreement that the commandment must have universal scope. But the Christian commandment has never been the law; nowhere have persons been legally required to act on behalf of strangers as though motivated by an instinct of self-preservation.” Id.

17. Sterk, Stewart E., Neighbors in American Land Law, 87 Colum L Rev 55, 100 (1987)CrossRefGoogle Scholar.

18. Speech at Bar Dinner (March 7, 1900), in Holmes, Oliver Wendell, Collected Legal Papers 247 (Harcourt Brace and Company, 1920)Google Scholar. See also Sidney Bartlett (March 23, 1889) in Speeches 44 (1934)Google Scholar: “It seems to me further that the rule for serving our fellow men, and, so as we may speculate or hope upon that awful theme, the rule for fulfilling the mysterious ends of the universe—it seems to me that the beginning of self-sacrifice and of holiness—is to do one's task with one's might.”

19. Berman, Harold J., The Interaction of Law and Religion 82–83 (Abingdon Press, 1974)Google Scholar:

[T]he biblical commandments to “love God with all your heart, and all your soul, and all your strength” and to “love your neighbor as yourself were not outside the Mosaic law but were integral parts of it, expressly stated in the Torah, and Jesus called them the summary, the very gist, of the Mosaic law. This means that for both Judaism and Christianity love is conceived as the spirit of the law itself, and law—including its detailed rules of conduct as well as its broad principles of morality—is intended to be an incarnation of love.… Jesus did not divorce love from law.… Instead, he insisted on interpreting all law in the light of its spirit and purpose—in the light of love—rather than literally and mechanistically.

20. Perry, Michael J., Love and Power 50 (Oxford U Press, 1991)Google Scholar:

David Lochhead, a Protestant theologian who has written extensively about inter-faith dialogue, counsels that “[t]he Christian commandment to love one's neighbor as Christ has loved us translates for the Christian into the dialogic imperative, the imperative to seek dialogue and to be open to dialogue whenever and from whomever it is offered.” Any community or person for which or whom love of neighbor is a constitutive ideal should understand that openness to the Other—to the stranger, the outsider—in deliberative dialogue facilitates as well as expresses such love: I can hardly love the Other—the real other, in all her particularity—unless I listen to her and, in listening, gain in knowledge of her, of who she truly is and what she needs or desires; and unless, having listened, I then respond to her. (To respond is not necessarily to agree; it may be to question, even to disagree.)

21. Fuller, Lon L., The Morality of the Law 20 (Yale U Press, 1964)Google Scholar: “What the Golden Rule seeks to convey is not that society is composed of a network of explicit bargains, but that it is held together by a pervasive bond of reciprocity.” See also id at 182-83 regarding the parable of the Good Samaritan.

22. Buch v Amory Mfg. Co, 44 A 809 (NH 1898); see also Buchanan v Rose, 159 SW2d 109 (Tex 1942).

23. Id.

24. Perry v Sears, Roebuck & Co., 598 S2d 1086, 1087 (Miss 1987); see also, Jordan v Duff and Phelps, Inc., 815 F2d 429, 438 (7th Cir 1987); Tucker v Burt, 115 NW 722, 723 (Mich 1908) and Shaw v Burchfield, 481 S2d 247, 249 (Miss 1985).

25. See Missey v Kwan, 595 SW2d 460, 462 (Mo Ct App 1980) and Botta v Brunner, 138 A2d 713, 719 (NJ 1958).

26. Lake Michigan College Federation of Teachers v Lake Michigan Community College, 390 F Supp 103, 140-41 (WD Mich 1974), rev'd 518 F2d 109 (6th Cir 1975).

27. Perez v FBI, 707 F Supp 891, 928 (WD Tex 1988) (employment discrimination); Walters v Meador, 201 SW2d 24, 24-25 (Ark 1947) (property dispute); NAACP v Lansing Board of Education, 429 F Supp 583, 629-630 (WD Mich 1976) (desegregation), aff'd 559 F2d 1042 (6th Cir 1977), aff'd 571 F2d 582 (6th Cir 1978), and aff'd 581 F2d 115 (6th Cir 1978).

28. NAACP v Lansing Board of Education, 429 F Supp 583,630 (WD Mich 1976). See also United States v State of Michigan, 471 F Supp 192, 276-77 (WD Mich 1979), remanded, 623 F2d 448 (6th Cir 1980), remanded, 653 F Supp 277 (6th Cir 1981), and aff'd 712 F2d 242 (6th Cir 1983):

Justice is a virtue which cannot be exercised apart from love of neighbor. Love is, indeed “superior” to justice. At the same time love of neighbor proves itself in the form of justice. If justice is weakened, love itself is jeopardized. No man can profess to adhere to the greatest of all commandments-Love thy neighbor—if he should visit violence upon fellow men who would exercise centuries—old fishing rights which have been recently confirmed, little more than 150 years ago, and again 130 years ago, by most solemn promise of our nation.

29. The Amethyst, 1 F Cases 762, 764 (D ME 1840) (No 330)Google Scholar.

30. Griswold v Boston & M.R.R., 67 NE 354, 356 (Mass 1903).

31. The analysis herein will be restricted to these phrases; however, another phrase arguably manifests the love command in judicial usage—“brother's keeper.” See Gen 4:9. While the Bible uses the term “brother” to refer to a blood brother and fellow believer, courts have used the term “brother” more broadly in the sense of the “brotherhood of mankind.” See, for example, Johnson v Wood, 21 S2d 353, 355 (Fla 1945) (attractive nuisance doctrine applied to protect children from personal injury); Greentree at Murray Hill Condominium v Good Shepherd Episcopal Church, 550 NYS2nd 981, 983 (1989) (court refused to issue injunction prohibiting operation of a homeless shelter); and Garcia v Hargrove, 176 NW2d 566, 573 (Wis 1970) (Hallows dissenting) (majority refused to impose social host liability), (overruled, Sorenson by Kerscher v Jarvis, 350 NW2d 108, 119 (Wis 1984)).

32. Moore v Stetson Mach. Works, 188 P 769, 770 (Wash 1920); see also, Oldenburg v Sears, Roebuck & Co., 314 P2d 33,41 (Cal Ct App 1957) and Quiel v Wilson, 34 NE2d 590, 590 (Ohio Ct App 1940).

33. Williams v Williams, 211 SW2d 740, 742 (Mo Ct App 1948).

34. Thompson v McNeely, 254 NE2d 368, 374 (Ohio Ct App 1969).

35. In re OM, 565 A2d 573, 585,587 (DC Cir 1989) and In re Herres, 33 F 165, 167-68 (D Minn 1887).

36. Thompson v McNeely, 254 NE2d 368, 374 (Ohio Ct App 1969); see also Wong v Tenneco, Inc., 198 Cal Rptr 526, 529 (Cal Ct App 1984), modified and aff'd 702 P2d 520 (Cal 1985); and National Equipment Leasing, Inc. v Watkins, 471 S2d 1369, 1371 (Fla Dist Ct App 1985).

37. Evangelical Lutheran Synod of Kansas and Adjacent States v First English Lutheran Church of Oklahoma City, 47 F Supp 954, 964 (WD Okla 1942), rev'd 135 F2d 701 (10th Cir 1943).

38 . The Leo, 15 F Cases 324, 325 (EDNY 1869) (No 8250)Google Scholar.

39. Hairston v Keswick Corp., 200 SE 384, 384 (NC 1939); see also, Gaston-Lincoln Transit, Inc. v Maryland Casualty Co., 206 SE2d 155, 158-159 (NC 1974).

40. Rushton v Thompson, 35 F 635, 638 (D Neb 1888).

41. McNeely v Walters, 189 SE 114, 115 (NC 1938); see also Duke Univ. v Stainback, 357 SE2d 690, 692 (NC 1987).

42. Morris Storage & Transfer Co. v Wilkes, 58 SE 232, 234 (Ga Ct App 1907).

43. In re Thompson, 276 F 313, 318 (WD Pa 1921)Google Scholar, aff'd 284 F 65 (3d Cir 1922); see also In re Virginia Block Company, 6 BR 670, 673 (WD Va 1980)Google Scholar.

44. Chisman v Moylan, 105 S2d 186, 189 (Fla Dist Ct App 1958); see also Carile v Spofford, 69 S2d 318 (Fla 1954).

45. Barger v Barninger, 66 SE 439, 442 (NC 1909); see also, Watts v Parma Manufacturing Co., 124 SE2d 809, 813 (NC 1962).

46. Waschak v Moffat, 109 A2d 310, 321 (Pa 1954) (Musmanno dissenting); see also Guarino v Bogart 109 A2d 557, 561 (Pa 1962).

47. Brendale v Confederated Tribes and Bands of the Yakima Indian Nation, 109 S Ct 2994, 3010 (1989).

48. Eastland Woods v City of Tallmadge, 443 NE2d 927, 978, n 9 (Ohio 1983) (Brown dissenting); see also Hopewell Township Bd. of Supervisors v Golia, 452 A2d 1337, 1341-2 (Pa 1982).

49. Smith v United States, 32 Ct Cl 295, 297 (1897).

50. Cook & Nichol, Inc. v Plimsoll Club 451 F2d 505, 509 n 12 (5th Cir 1971).

51. Department of Labor and Industry, Bureau of Employment Security v Unemployment Compensation Board of Review, 211 A2d 463, 472 (Pa 1965) (Musmanno dissenting).

52. Needham v S.F. & S.J. Railroad Company, 37 Cal 409, 419-20 (1869); see also Coakley v Ajuria, 290 P 33, 35 (Cal 1930); Kentucky & I. Terminal R. Co. v Whoberry, 204 SW2d 590, 591 (Ky 1947); Dean v Hercules, Incorporated, 328 So2d 69, 71 (La 1976); Rakowski v Raybestos-Manhattan, 68 A2d 641, 643 (NJ 1949); Gross v Panico, 10 A 849, 851 (NJ 1935); Desmond v Bosch & Greenfield, 108 A 362, 362 (NJ 1919); Catoni v Swift & Co., 95 A 931, 932 (Pa 1915).

53. Ollet v Pittsburgh, C. C. & St. L. Ry. Co., 50 A 1011, 1011 (Pa 1902).

54. See generally, Comment, Good Samaritan Laws—The Legal Placebo: A Current Analysis, 17 Akron L Rev 303 (1983)Google Scholar.

55. Needham v S.F. & S.J. Railroad Company, 37 Cal 409, 419 (1869).

56. The Amethyst, 1 F Cases 762, 764 (D Me 1840) (No 330)Google Scholar.

57. Exod 20:13.

58. Exod 20:15.

59. See discussion in part III B 3 a.

60. See discussion in part III B 3 b.

61. See discussion in part III B 3 c.

62. See discussion in part III B 3 d.

63. See discussion in part III B 3 e.

64. Luke 10:27.