Citation: Mary C. Szto, Lawyers as Hired Doves: Lessons from the Sermon on the Mount, 31 Cumb. L. Rev. 27 (2000)
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LAWYERS AS HIRED DOVES: LESSONS FROM THE SERMON ON THE MOUNT
MARY C. SZTO”
You have heard that it was said, “Eye for eye, and tooth for tooth.” But I tell you, Do not resist an evil person. If someone strikes you on the right cheek, turn to him the other also. And if someone wants to sue you and take your tunic, let him have
your cloak as well. If someone forces you to go one mile, go with him two miles. Give to the one who asks you, and do not
turn away from the one who wants to borrow from you.
The Sermon on the Mount is one of the most popular texts in world literature. Delivered by Jesus Christ and recorded in the Gospels of Matthew and Luke,2 its lessons of love and wis- dom have been admired by people of many faiths and nation- alities. These include Gandhi,3 the Reverend Dr. Martin Luther King, Jr., 4 and Confucianists.5 Its appeal to the universal hu- man condition is striking. Gandhi explained that the sermon went straight to his heart.6 Interestingly, while much of Christ’s
Associate Professor, Regent University School of Law. B.A., Wellesley College, 1981; M.A.R., Westminster Theological Seminary, 1983; J.D., Columbia University, 1986. This article is dedicated to my beloved husband.
1 Matthew 5:38-42. All Scripture quotations are taken from the HOLY BIBLE, NEW INTERNATIONAL VERSION (7th ed., Zondervan Publishing House 1991). Used by per- mission of Zondervan Publishing House. All rights reserved.
2 Considered the greatest exposition of the Christian faith and life, it is found in Matthew 5-7 and Luke 6:1749. It contains the Beatitudes, the Lord’s Prayer, and other teachings.
3 See MAHATMA GANDHI: HIS OWN STORY 93 (C. F. Andrews ed., MacMillan Co. 1930).
See MARTIN LUTHER KING, JR., STRENGTH TO LOVE 10 (Harper & Row 1963). 5 See Daniel T.W. Chow, A Study of the Sermon on the Mount: With Special Refer-
ence to Matthew 5:21-48, 2 E. ASIA J. THEOLOGY 312, 314 (1984) (finding that among Chinese, it is favorably compared to Confucian tenets).
6 See GANDHI, supra note 3, at 93.
sermon is an exposition on law, more specifically Jewish law, few lawyers or legal theorists have applied its principles to the practice of law.
This article will discuss why the application of the Sermon on the Mount (“SM” in the theological literature and hereafter) to the practice of law has been sparse. 7 After giving a short summary of the SM, I will examine, in particular, the struggle of the Christian church and other exegetes to interpret the seemingly radical demands of the SM. Theologians have held often opposite views of the SM, ranging from its literal applica- tion to its non-application, and from the elimination of law to its irrelevance to law. These theological views have had a pro- found influence on how lawyers view their profession.
I will then turn to an examination of four particular verses of the SM as a legal text, verses which Gandhi took particular delight in.8 My thesis is that the SM requires a radical spiritual model of lawyering, which includes active engagement with clients’ motives, a refusal to be a tool of vengeance, and a reso- lute desire to be a peacemaker and healer. I call this model “lawyers as hired doves,” 9 in sharp contrast with the predomi- nant “hired gun” motif in American lawyering.10 This is be- cause in the SM the meaning and end of positive law are love, selflessness, and charity.” Because law is love, followers of Christ, also known as the redeemed community, assert their legal rights sparingly, overwhelm legal adversaries and gov-
7 See generally, Craig A. Stern, Crime, Moral Luck, and the Sermon on the Mount, 48 CATH. U. L. REV. 801 (1999) (for a notable exception).
8 GANDHI, supra note 3. 9 The dove, of course, is a symbol for peace. It is also a symbol for the Holy
Spirit. Another appropriate biblical metaphor might be “hired plowshares.” In Micah 4:3, the prophet states that “He will judge between many peoples and will settle dis- putes for strong nations far and wide. They will beat their swords into plowshares and their spears into pruning hooks.” Micah 4:3.
10 Much literature has been devoted to debating the merits of the “hired gun” model. See, e.g., Joseph Allegretti, Have Briefcase Will Travel: An Essay on the Lawyer as Hired Gun, 24 CREIGHTON L. REV. 747 (1991); Ted Schneyer, Some Sympathy for the Hired Gun, 41 J. LEGAL EDUC. 11 (1991); Susan P. Sturm, From Gladiators to Problem- Solvers: Connecting Conversations about Women, the Academy, and the Legal Profession, 4 DUKE J. GENDER L. & POL’Y 119 (1997); see ROBERT F. COCHRAN, JR. & THOMAS SHAFFER, LAWYERS, CLIENTS, AND MORAL RESPONSIBILITY (West Publishing Co. 1994) (lists the following options: lawyer as hired gun, godfather, guru or friend in their categorization of attorney counseling models).
11 See generally ANTHONY COOK, The Death of God in American Pragmatism and Re- alism: Resurrecting the Value of Love in Contemporary Jurisprudence, 82 GEO. L.J. 1431 (1994) (advocates the Christian value of love in contemporary jurisprudence). See also JAMES CHAMBERLAIN ET AL., LAWYERS IN GOD’S WORLD: THE LOVE COMMAND AS
MODERN LAW (Radix 1990). This attempt at “law and love” will be more specifically exegetical.
LAWYERS AS HIRED DOVES
ernment officials with twice what they have asked for, and provide generously for the poor. Such paradoxical justice liber- ates lawyers to become hired doves.
I. THE CONTENTS OF THE SM
The SM may be the most quoted and studied passage from the Christian scriptures.12 Many of its phrases have become everyday colloquialisms, such as “turn the other cheek.” Even those who have never read the SM will recognize its teachings from other contexts. For numerous readers, the SM contains beautiful truths and principles that are contrary to worldly wisdom, aggression, and patterns of success. Ironically, be- cause the SM embodies ethical principles that at face value are “upside-down,” the SM may be the most ignored passage of Scripture. Many persons read the SM, acknowledge its beauty, power, and purity, and then quickly move on to other passages in the Bible that are more palatable. 13 Before I discuss the her-. meneutical history of the SM, here is a brief summary of its teachings.14
Jesus Christ delivered the SM on a mountainside to his dis- ciples and to a large crowd of people. 15 Related in the book of Matthew, it was delivered early in Jesus’ public ministry of preaching and healing. The SM begins with the Beatitudes, which are a series of blessings for his followers. Among these are “[b]lessed are the meek, for they will inherit the earth.”
The next section of the SM is an explicit exposition of the Mosaic Law in which Jesus claims that he has come to fulfill the Mosaic Law.17 This section contains startling teachings. For example, Jesus states that the Mosaic prohibition against mur- der includes a prohibition against hate18 and a prohibition against adultery that prohibits lust.19 The verses that I will ex-
12 See CARL G. VAUGHT, THE SERMON ON THE MOUNT: A THEOLOGICAL INTERPRETATION ix (State Univ. of New York Press 1986).
13 See generally George I. Mavrodes, The Hardest Verses in the Bible, 36 REFORMED J. 12 (1986) (for an honest confession).
14 For purposes of this summary I will draw only from the Matthew text. Is See Matthew 5:1. 16 Matthew 5:5. 17 Matthew 5:17. 18 Matthew 5:21-22. ‘9 “You have heard that it was said, ‘Do not commit adultery.’ But I tell you that
anyone who looks at a woman lustfully has already committed adultery with her in his heart.” Matthew 5:27-28. Many readers may recall the stir/bewilderment that arose when President Jimmy Carter admitted that he had committed adultery in his heart.
plicate in further detail in this article are in the middle of the SM. They are an explication of the lex talionis verses, the stan- dard for Jewish civil law, “an eye for an eye.” These verses ad- vise nonresistance, turning the other cheek,20 and walking the extra mile.21 In addition to the Beatitudes, Mosaic, and lex tali- onis verses, the SM also contains Jesus’ command to love your enemies;22 the teaching of the Lord’s Prayer;23 and Jesus’ ad- monitions about not loving money, 24 not worrying,25 not judg- ing,26 and “do[ing] to others what you would have them do to you … *”27 This last statement is Christ’s summary of the meaning of law. The SM ends with a parable of foolish and wise people. 28
II. THE APPLICABILITY OF THE SM
A. Historical Overview of the General Application of the SM
The history of the SM’s application to lawyers must be seen within the greater context of its hermeneutical history. Theolo- gians, philosophers, and ethicists have wrestled with its radical principles for centuries.29 In fact, the SM has been called the “most controversial biblical text.”30 The interplay of law and theology is poignant. The SM has been sparingly applied to lawyers for three main reasons. First, it has been sparingly ap- plied to anyone. 31 Many theologians have held that the SM is an unattainable ideal. Secondly, law has been singled out as particularly beyond the application of the SM. This line of rea- soning is not unlike that of the so-called separation of law and
2D Matthew 5:39. 2 Matthew 5:41. 2 Matthew 5:44. 2 See Matthew 6:9-13. 24 Matthew 6:19-24. 2 Matthew 6:25. 2 Matthew 7:1-6. 2 Matthew 7:12. 2 See Matthew 7:24-27. 2 There are several histories of its interpretation. See, e.g., WARREN S. KISSINGER,
THE SERMON ON THE MOUNT: A HISTORY OF INTERPRETATION AND BIBLIOGRAPHY (Scarecrow Press 1975); see HANS DIETER BETz, ESSAYS ON THE SERMON ON THE MOUNT 1-17 (L.L. Wellbom trans., Fortress Press 1985) (for an essay on its literary genre).
3 CLARENCE BAUMAN, THE SERMON ON THE MOUNT: THE MODERN QUEST FOR ITS MEANING 3 (Mercer Univ. Press 1985).
31 Notable exceptions to inapplicability of the SM are Gandhi, Martin Luther King, Jr., and the Christian pacifist movements. See GHANDI, supra note 3; KING, supra note 4.
2000] LAWYERS AS HIRED DOVES
morality. 32 This is influenced in part by interpreting it in isola- tion from other biblical texts. 33 Thirdly, others have held that the SM should be literally applied, even to the point of elimi- nating the state.34
Historically, the first major issue facing the Church fathers 35
was whether the SM applied to all believers. For example, the Didache,36 Justin Martyr,37 Irenaeus,38 Tertullian,39 Origen, 40
Chrysostom, and Augustine wrote that the SM applied to all believers. 41 However, Augustine held that the SM did not pre- clude military service for the defense of right, of others, of the state, and of God’s purposes. 42
In contrast to the early Church fathers, Saint Thomas Aqui- nas taught in the medieval age that parts of the SM were re- served for an elite or super class of adherents. These believers took vows of “poverty, chastity, and obedience.” 43 According to Aquinas, the SM contains both evangelical “precepts” and “counsels of perfection.” 44 While the precepts pertained to sal-
32 See, e.g., Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457 (1897); H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593 (1958).
33 W.D. Davies & Dale C. Allison, Jr., Reflections on the Sermon on the Mount, 44 SCOT. J. THEOLOGY 283, 283 (1991) (provides a thumbnail sketch of various interpreta- tions of the SM and claims that the SM has not been interpreted properly within the context of other Matthean references).
3 The range of interpretations of the SM reflects the various theological and hermeneutical stances of their authors. Two related critical hermeneutical questions are whether the SM is integrally related not only to the rest of the gospel of Matthew, but also to the Christian canon of both the Old and New Testaments, and if the Chris- tian canon is divinely authored. My interpretation rests on affirmative answers to these two questions. Therefore, my conclusions as to the SM’s meaning and applica- bility necessarily include a discussion of related canonical texts.
3 Apparently there were no Church mothers writing at this time. 36 See generally EARLY CHRISTIAN FATHERS 171 (Cyril C. Richardson et al. trans.
and eds., Collier Books 1970). The teaching of the Twelve Apostles is known as the Didache. Id.
37 See generally THE FATHERS OF THE CHURCH: A NEW TRANSLATION, WRITINGS OF SAINT JUSTIN MARTYR 50 (Thomas B. Falls trans., Christian Heritage, Inc. 1948).
38 See generally THE EARLY CHURCH FATHERS 122 (Henry Bettenson ed. and trans., Oxford Univ. Press 1963).
39 See generally THE FATHERS OF THE CHURCH: A NEW TRANSLATION, TERTULLIAN: DISCIPLINARY, MORAL & ASCETICAL WORKS 207 (Rudolph Arbesmann et al. trans., Fathers of the Church, Inc. 1959).
40 See generally 2 ALEXANDRIAN CHRISTIANITY 167-459 (John Ernest Leonard Oul- ton et al. eds., Westminster Press 1954).
41 See KISSINGER, supra note 29, at 7-13 (for a discussion of Didache, Justin Mar- tyr, Irenaeus, Tertullian, Origen, Chrysostom and Augustine).
2 See R.E.O. WHITE, CHRISTIAN ETHICS: THE HISTORICAL DEVELOPMENT 111 (John Knox Press 1981).
43 KISSINGER, supra note 29, at 18. 44 Id.
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vation, the counsels pertained to “perfection and the imitation of Christ himself.” 45 Thus, within this scheme, strict adherence to the SM involved monasticism and asceticism and was not required of all believers. 46 It was not applicable to the popula- tion at large.
B. Historical Overview of the Application of the SM to the State and the Law
At the time of the Reformation the question of the SM’s ap- plication was complicated by the debate surrounding church and state. Did the SM apply to the state and the law? There were four main views: Aquinas’s, the Anabaptist literalist view, Martin Luther’s non-applicability or “two kingdom” view, and the Calvinist view.47
In the sixteenth century, the Anabaptists were actually vari- ous groups on the Continent that “refused to allow their chil- dren to be baptized and reinstituted the baptism of believ- ers.”48 These groups included Thomas Monzer and the Zwickau prophets, the Swiss Brethren, Hutterites, and Men- nonites.49 The Anabaptists held to a literal view of the SM, to the point of delegitimizing the state and civil law.5° In contrast to Aquinas’s limited view of the SM, the Anabaptists held that the SM forbade taking oaths, filing lawsuits, or going to war in all circumstances.51 Therefore, they held that believers must withdraw from the state and political life, and that church and state are necessarily separate. 52 “Their views on baptism, their insistence that the church and the state be separate, their rejec- tion of oaths and violence, caused them to become the object of derision, persecution, and martyrdom.”5 3 In fact, these Anabap- tist views have had a profound influence on American views of church and state to this day.54
4 Id 4 See id. 17 The Christian church today still bears the influence of each of these interpreta-
tions. The Lutheran view provides a convenient separation of individual and public morality.
48 KISSINGER, supra note 29, at 30. “Anabaptist” literally means to “baptize over again.” Id.
49 Id. 5 See id. at 31-32. 51 See id. at 31-33. 52 Id. at 30-31. 5 Id. at 30. 5 For example, the Anabaptist view of non-involvement with government and
politics has been the traditional stance of American evangelicalism and fundamental-
LAWYERS AS HIRED DOVES
In contrast to the Anabaptists, Martin Luther adhered to a “two kingdom” approach. Luther taught that the SM preached two kingdoms, the kingdom of Christ and the kingdom of the world. Accordingly, God rules the secular kingdom through secular authority and the spiritual kingdom through His Word. Luther distinguished between the role of the Christian as a pri- vate individual and the role of the Christian as a secular, public figure, such as that of a lawyer, judge, or soldier. 55 He wrote:
Thus when a Christian goes to war or when he sits on a judge’s bench, punishing his neighbor, or when he registers an official complaint, he is not doing this as a Christian, but as a soldier or a judge or a lawyer. At the same time he keeps a Christian heart. He does not intend anyone any harm, and it grieves him that his neighbor must suffer grief. So he lives simultaneously as a Christian toward everyone, personally suffering all sorts of things in the world, and as a secular person, maintaining, using, and performing all the functions required by the law of his territory or city, by civil law, and by domestic law.
Luther thus legitimated civil authority but taught that non- resistance referred to Christian individuals, not the state.57 Lu- ther may have opened the way for many believers to live bifur- cated lives, divorcing their personal and professional selves, which is a common theme among legal reformers today.58
John Calvin’s interpretation of the SM was more akin to the early Church fathers, including Augustine. Calvin taught that the SM allowed Christians to bring lawsuits but without ran- cor,59 because the civil authorities exercised God’s vengeance. 60
Key to Calvin’s interpretation was his use of other biblical texts, in particular Romans 12, a Pauline text that taught that God ordained all civil authority. Calvin pleaded with believers to examine their motives when bringing lawsuits. In accor- dance with his interpretation of the SM he wrote,
ism. Politics is “dirty.” The relatively recent entry of many Christians into politics is perceived as moralistic and disingenuous to others.
5 21 LUTHER’S WORKS: THE SERMON ON THE MOUNT AND THE MAGNIFICAT 113 (Jaroslav Pelikan ed., Concordia Publishing House 1956).
56 Id. 57 KISSINGER, supra note 29, at 21-22. 59 See generally Russell G. Pearce, The Jewish Lawyer’s Question, 27 TEX. TECH L.
REV. 1259 (1996) (for a discussion of this question among Jewish lawyers). S See I JOHN CALVIN, COMMENTARY ON A HARMONY OF THE EVANGELISTS,
MATTHEW, MARK, AND LUKE 299-300 (William Pringle trans., Win. B. Eerdmans Pub- lishing Co. 1949).
60 2 JOHN CALVIN, INSTITUTES OF THE CHRISTIAN RELIGION 667 (Henry Beveridge trans., Wm. B. Eerdmans Publishing Co. 1972).
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[J]udicial proceedings are lawful to him who makes a right use of them; and the right use, both for the pursuer and for the de- fender, is for the latter to sist himself on the day appointed, and, without bitterness, urge what he can in his defence, but only with the desire of justly maintaining his right; and for the pursuer, when undeservedly attacked in his life or fortunes, to throw himself upon the protection of the magistrate, state his complaint, and demand what is just and good; while, far from any wish to hurt or take vengeance – far from bitterness or ha- tred – far from the ardour of strife, he is rather disposed to yield and suffer somewhat than to cherish hostile feelings to- wards his opponent. On the contrary, when minds are filled with malevolence, corrupted by envy, burning with anger, breathing revenge, or, in fine, so inflamed by the heat of the contest, that they, in some measure, lay aside charity, the whole pleading, even of the justest cause, cannot but be impi- ous.
Like Calvin, Luther also allowed for the bringing of lawsuits by Christians if this was done “out of a genuine love for right- eousness,” 62 but he characterized this as secular business.
With notable exceptions, modern views of the SM have greatly limited the SM’s general and legal relevance. Johannes Weiss wrote that Jesus’ intentions had no application to earthly institutions and were only to be realized in the future. 63 Albert Schweitzer reasoned that the SM represents an “interim ethics” of repentance in anticipation of the eschaton 64 and that “the Kingdom of God is supramoral.” 65 Reminiscent of Luther’s per- sonal morality view, Reinhold Niebuhr held that Jesus’ ethics embody an impossible ethical idea governing only the vertical dimension between the loving will of God and the will of man.66 Others have held the SM to be simply unrealistic and suitable only for a utopian community. 67
61 Id. at 666. Like Calvin, Luther also allowed for the bringing of lawsuits by Christians if this was done “out of a genuine love for righteousness,” but he charac- terized this as secular business.
6 Luther, supra note 55, at 111. 63 BAUMAN, supra note 30, at 96. The commands to turn the other cheek and to
give up one’s property are indications that these are petty concerns compared to the coming kingdom of God.
6 KISSINGER, supra note 29, at 58-59. 65 BAUMAN, supra note 30, at 119 (citations omitted in original). 6 See REINHOLD NIEBUHR, AN INTERPRETATION OF CHRISTIAN ETHIcs 49-50
(Harper & Row 1935). 67 See Solomon Zeitlin, Prolegomenon to GERALD FRIEDLANDER, THE JEWISH
SOURCES OF THE SERMON ON THE MOUNT XXV (Ktav Publishing House, Inc. 1969).
LAWYERS AS HIRED DOVES
Several notable modern exceptions, however, have contin- ued to advocate the SM’s applicability to political, if not legal, matters. 68Disenchanted with Russian orthodoxy and enchanted with the Russian peasant class, Leo Tolstoy held an extremist view Of the SM, denigrating all government and law.69 Because of thd SM’s injunction against resisting evil, Tolstoy advocated complete pacifism. 70 He opposed the use of soldiers, police, or magistrates as “unchristian.” 71 He thought that the army and the state were antithetical to the SM.72
Facing political oppression in Germany in the early 1930’s, Dietrich Bonhoeffer saw the Christology of the SM as a basis for “a theology of action.”73 In addition, Gandhi and Dr. Martin Luther King, Jr. admirably found inspiration from the SM for a strategy for social reform. Gandhi wrote,
[T]he Sermon on the Mount .. . went straight to my heart. I compared it with the Gita. The verses, “I say unto you, that ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also. And if any man take away thy coat let him have thy cloak also,” delighted me beyond measure and put me in mind of Shamal Bhatt’s “For a bowl of water, give a goodly meal.” My young mind tried to unify the teaching of the Gita, the Light of Asia, and the Sermon on the Mount. The idea of Renunciation as the highest form of relig- ion appealed to me greatly.74
III. THE SM AS LEGAL TEXT
The above discussion points to the controverted applicabil- ity of the SM in general and to law, politics, and legal ethics in particular. 75 In the following sections, however, I will examine four verses from the SM, Matthew 5:38-42, as a legal text.76 Mat-
6 Interestingly enough, Weiss, Schweitzer, and Neibuhr all advocated ecclesias- tical, social and/or political reform.
69 See KISSINGER, supra note 29, at 52, 55-56. 70 Id. at 55. 71 D. MARTYN LLOYD-JONES, STUDIES IN THE SERMON ON THE MOUNT 274-75
(Win. B. Eerdmans Publishing Co. 1971) (characterizes Tolstoy’s approach as one of taking the Lord’s words at face value).
72 See BAUMAN, supra note 30, at 28-29. 73 KISSINGER, supra note 29, at 85, 87. 74 GANDHI, supra note 3. I s3 Another reason for the SM’s controverted application is the unfortunate gulf
in dialogue between theologians and lawyers in general. See Thomas L. Shaffer, Essay On Religious Legal Ethics, 35 CATH. LAW. 393 (1994).
16 Of course, the SM is not exclusively a legal text.
thew 5:38-42 reads: You have heard that it was said, ‘Eye for eye, and tooth for tooth.’ But I tell you, Do not resist an evil person. If someone strikes you on the right cheek, turn to him the other also. And if someone wants to sue you and take your tunic, let him have your cloak as well. If someone forces you to go one mile, go with him two miles. Give to the one who asks you, and do not turn away from the one who wants to borrow from you.
This reading relies on Jesus Christ’s explicit reference in these verses to the foundation of civil law, the lex talionis and his concrete applications of it; namely, responding to a physical assault, a lawsuit, a governmental request, a beggar, and other legal biblical references.
Hans Dieter Betz stated that
[t]he knowledge intended by the theology of the SM is to be gained by an intensive interaction between reflection and prac- tice …. [T]he SM is ultimately doctrine about the understand- ing and implementation of the Torah …. [T]his interaction of reflection and practice is stated not in the form of objectified knowledge but in the form of the image of ‘the prudent man’ (divrp povtpoS) in contrast to ‘the foolish man’ (ervrlp Po)p). 7
Unlike the Anabaptists and Leo Tolstoy, I do not think the SM seriously requires delegitimizing law. Also, unlike Luther, I do not think law seriously requires limiting the SM’s relevance or creating a personal/professional gap. The SM creates space for law; however, its jurisprudence inverts law. The SM’s sig- nificance for lawyers must include an understanding of the Be- atitudes, the identity of Christ’s followers, and Christ’s fulfill- ment of the law, which is illustrated by examples of the lex tali- onis. The application of the SM, however, extends even beyond the group of self-avowed followers of Christ as shown by the universal appeal of the SM.
A. The Beatitudes and the Fulfillment of the Law
As stated earlier, the SM begins with a series of blessings
77 Hans Dieter Betz, The Sermon on the Mount: Its Literary Genre and Function, 59 J_ OF RELIGION 285, 288-89 (1979). “[It] is not ‘law’ to be obeyed, but theology to be intel- lectually appropriated and internalized, in order then to be creatively developed and implemented in concrete situations of life.” Id. at 296.
LAWYERS AS HIRED DOVES
known as the Beatitudes. 78 Thus, an examination of our key verses also begins with these blessings. The Beatitudes deline- ate a community. Just as the original Mosaic laws were given to a liberated community, Christ’s exposition of the law is given to a community. Therefore, law follows community identity. 79
But who is the SM community? It is an inverted community whose condition can only be explained by its head Christ.80
In Greek culture, humility “was linked with… [the] igno- ble,. . . downcast and low.” 81 Yet Jesus’ calls blessed those who are poor in spirit and broken. “They realize their own utter helplessness, expect nothing from self, [and] everything from God.” 82 This in turn leads to strength. Because the meek rely on God 83 they receive mercy and are then willing to suffer for the sake of others. 84 They follow Christ’s example.
After Christ identifies the community to whom he explicates the law, he turns to his role in fulfilling the law.85 Christ states that his mission is not to abrogate law, but to fulfill the Law and the Prophets.8 6 His kingdom is characterized by law. These ideas have divided many theologians. Referring to other Scrip- ture, 87 some theologians have taught that Christ ushered in grace, not law, and that Christians are no longer under the
n See supra text accompanying notes 15-16. 79 For example, the preface to the Ten Commandments states that “I am the Lord
your God, who brought you out of Egypt, out of the land of slavery.” Exodus 20:2. God delivered the law within the Mosaic community. New Testament ethics are also community oriented. See James W. Thompson, The Ethics of Jesus and the Early Church, in CHRISTIAN SOCIAL ETHICS 55 (Perry C. Cotham ed., Baker Book House 1979). Jewish law also does not distinguish between individual and social ethics. GERALD FRIEDLANDER, THE JEWISH SOURCES OF THE SERMON ON THE MOUNT 84 (Harry M. Or- linsky ed., Ktav Publishing House, Inc. 1969).
so See BRUCE CHILTON & J.I.H. MCDONALD, JESUS AND THE ETHICS OF THE KINGDOM (Wm. B. Eerdmans Publishing Co. 1987) (discussing the centrality of the kingdom of God to Christ’s moral teachings); see also Thompson, supra note 79, at 47.
81 ERIC OSBORN, ETHICAL PATTERNS IN EARLY CHRISTIAN THOUGHT 32 (Cam- bridge Univ. Press 1976).
82 WILLIAM HENDRIKSEN, NEW TESTAMENT COMMENTARY: EXPOSITION OF THE
GOSPEL ACCORDING TO MATTHEW 269 (Baker Book House 1973) (citation omitted). 8 See id. at 271-272; MARTYN LLOYD-JONES, supra note 71, at 275-76. 84 See HENDRIKSEN, supra note 82, at 272. 5 Christ says, “Do not think that I have come to abolish the Law or the Prophets;
I have not come to abolish them but to fulfill them.” Matthew 5:17. Scholars have long debated the meaning of this verse. See VERN POYTHRESS, THE SHADOW OF CHRIST IN THE LAW OF MOSES 263-69 (Wolgemuth & Hyatt 1991). Friedlander gives a very inter- esting discussion of the consistency of Jesus’ teaching on the lex talionis with the To- rah and many rabbinical thinkers. See FRIEDLANDER, supra note 79, at 65-75.
8 Matthew 5:17. s7 See, e.g., Galatians 3:25 (“Now that faith has come, we are no longer under the
supervision of the law.”).
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law.88 Yet, if one is to take these verses in the SM seriously, one must realize that Christ is redefining law and clearing up misconceptions concerning the law. In fact, Christ points to the spiritual nature of law and each of his illustrations about ha- tred, lust, divorce, and oaths drives this point home.
The next verses, our key verses, further illustrate that the meaning of the law is love that is established through love of enemies and self-sacrifice. God loved his enemies by redeem- ing them through Jesus Christ.89 “As heirs of the kingdom of heaven [, Christ’s followers] are not merely to operate in terms of normal earthly patterns of retribution, but a heavenly pat- tern of giving good for evil.. ..”90
B. Matthew 5:38 -42
1. Lex Talionis
The prime example of this heavenly legal pattern can be il- lustrated by Christ’s explanation of the lex talionis: “If anyone injures his neighbor, whatever he has done must be done to him: fracture for fracture, eye for eye, tooth for tooth. As he has injured the other, so he is to be injured.” 91 The lex talionis was given to Israel as the foundation for civil law 92 and rules for magistrates. 93 Lex talionis established the rule for public retribu- tion–it had to be proportionate to the offense at hand regard- less of the social or economic status of the offender.94 In con- trast, the Babylonian and Hittite laws allowed the rich or well-
98 Cornelius Van Til argues, however, that the difference between Old Testament ethics and New Testament ethics is only a difference in the stage of development of the revelational principle that lies at the heart of Christian-theistic ethics. 3 CORNELIUS VAN TIL, IN DEFENSE OF THE FAITH: CHRISTIAN THEISTIC ETHICS 15 (Presbyterian and Reformed Publishing 1980).
89 See Ephesians 2:1-9. 90 POYTHRESS, supra note 85, at 261. 91 Leviticus 24:19-20; see also Exodus 21:24; Deuteronomy 19:21. 9 JOACHIM JEREMIAS, THE SERMON ON THE MOUNT 28 (Norman Perrin trans., For-
tress Press 1963). 93 1 THE PULPIT COMMENTARY, EXODUS 179-80 (H.D.M. Spence and Joseph S. Ex-
ell eds., 1980). 91 JEREMIAS, supra note 92 at 28. Some argue that the lex talionis was never liter-
ally observed. See J.K. Miklisanski, The Law of Retaliation and the Pentateuch, 66 J. OF BIBLICAL LITERATURE 295, 300 (1947). A punishment matched a trespass by replicating or reproducing the effect of the trespass but only in the reverse direction. For exam- ple, if Bill stole from Al then he must return what he stole and give Al the same amount. Thus, Al ends up advantaged by the theft instead of Bill. POYTHRESS, supra note 85 at 127.
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born lesser penalties.95 Traditional Chinese penal law is an- other example of the differentiation of punishment according to social status.96
In Jesus’ day, however, the lex talionis was interpreted as a justification for private retribution. Jesus, however, counters this misuse of the lex talionis.97 He teaches that not only is vengeance unacceptable but also God intends that we do good to those who are our enemies. Jesus states “You have heard that it was said, ‘Eye for eye, and tooth for tooth.’ But I tell you, do not resist an evil person.”98 The word “resist” is a legal term and might be translated as “take to court” or “give testimony against.” 99 Jesus then gives four common, everyday examples to illustrate his point of non-retaliation. Jesus states:
If someone strikes you on the right cheek, turn to him the other also. And if someone wants to sue you and take your tunic, let him have you cloak as well. If someone forces you to go one mile, go with him two miles. Give to the one who asks you, and do not turn away from the one who wants to borrow from you.1
These examples pertain “to both personal and legal affairs,… [and] to both physical and property damage.” 1°1 What these four examples do not include is also noteworthy. They do not include examples of when others are offended or lives are en- dangered. 102
9 See WILLIAM FOXWELL ALBRIGHT, HISTORY, ARCHAEOLOGY, AND CHRISTIAN HUMANISM 74 (McGraw-Hill Book Company 1964).
9 XIN REN, TRADITION OF THE LAW AND LAW OF THE TRADITION: LAW, STATE,
AND SOCIAL CONTROL IN CHINA 39 (Greenwood Press 1997). 97 Such misuse was contradictory to other Old Testament passages. See, e.g., Le-
viticus 19:18 (“Do not seek revenge or bear a grudge against one of your people, but love your neighbor as yourself. I am the Lord.”). Jesus teaches against those who limited their neighbor to one’s own ethnic group. See Matthew 5:43-48.
96 Matthew 5:38-39 (emphasis added); see JEREMIAS, supra note 92 at 28 (stating that “go to law” is the correct translation of “resist” in Matthew 5:39).
9 SINCLAIR FERGUSON, KINGDOM LIFE IN A FALLEN WORLD: LIVING OUT THE
SERMON ON THE MOUNT 135 (Navpress 1987). 100 Matthew 5:39-42. ‘m JOHN PIPER, LOVE YOUR ENEMIES 89 (1979) (citations omitted). 102 See ALBERT BARNES, NOTES ON THE NEW TESTAMENT: EXPLANATORY AND
PRACTICAL, MAITHEW AND MARK 59 (Robert Frew ed., Baker Book House, photo. reprint 1979) (1832).
2. Jesus’ examples of the Proper Application of the Lex Talionis
(a) Turning the Other Cheek
Jesus’ first example involves an insult. Striking a person on the right cheek–a blow with the back of the hand–was an in- sult.1°3 Such a blow is still an insult in modern Eastern cul- ture.10 4 Sinclair Ferguson writes, “The fine for such an insult exceeded the average man’s wages for an entire year. Also, it was an insult for which the only recourse was to take a man to court, as people might do today for libel or defamation of char- acter.”105
However, Christ states that not only does a disciple have no “right” to retaliate with a return blow,106 but that proportional- ity dictates turning the other cheek. In other words, Christ’s disciples must be willing to suffer instead of inflicting injury. But what happens in the moment of turning one’s cheek? Turn- ing the other cheek is not a passive act but a deliberate one.10 7 It is “non-cooperation” with evil.108 It refuses to escalate vio- lence by heeding the “logic of violence.” 10 9 In a moment, a pas- sive person becomes a regal peacemaker. 110 A victim becomes a benefactor. It implies “human dignity… [and] the possibility. • .for a breakdown … into the consciousness of the one who delivers the blow, driving the transaction to a higher level.””1 Justice therefore finds its perfection in love.112 Also, “there is
103 See JEREMIAS, supra note 92 at 28. 104 Id. 10 FERGUSON, supra note 99 at 136. However, Vaught states that this was a non-
judicial situation where a legal remedy would have been impossible. For instance, if a Roman general slapped a Jewish subject, there would be no recourse in Mosaic law; the apparent alternatives would be “spontaneous retaliation or abject submission.” VAUGHT, supra note 12, at 102.
106 Jeremias limits this admonition against civil action to insults dealt Christ’s disciples as the result of their faith. His support for this is Isaiah 50:6-7, the only other Biblical reference to the voluntary endurance of a blow on both cheeks. JEREMIAS, supra note 92, at 28-9. The prophet wrote, “I offered my back to those who beat me, my cheeks to those who pulled out my beard; I did not hide my face from mocking and spitting. Because the Sovereign Lord helps me, I will not be disgraced. Therefore have I set my face like flint, and I know [that] I will not be put to shame.” Isaiah 50:6-7.
107 VAUGHT, supra note 12, at 102. 108 CHILTON & McDONALD, supra note 80, at 104. 109 Id. nl0 See VAUGHT, supra note 12, at 102.
I Id. 112 See Jerome Rausch, The Principal of Nonresistance and Love of Enemy in Mt 5:38-
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no particular merit in nonresistance unless love is its positive form.”113 “[T]o turn the other cheek means to show in attitude, word, and deed that one is filled with the spirit not of rancor but of love.”
Such a strategy requires tremendous self-discipline and in- ner authority. It is akin to the discipline required in martial arts. “[T]he better trained you are the longer you are able to restrain yourself from an action or reaction.”115 Vern Poythress writes about this confounding passage and states,
Jesus invokes the principle of balanced recompense in an al- tered way. The old rule said that if Al does damage to Bill, Al must in turn suffer equivalent damage and restore the damage that has been done to Bill. Jesus’ new principle makes a subtle alteration. If Al does damage to Bill, Bill willingly has Al do it again. The damages goes twice in the same direction rather than being reversed. The intentions, however, are reversed by Bill’s willingness to suffer loss and to do good to Al.
Turning the other cheek, however, may include an appeal to justice. Lloyd-Jones states that a follower of Christ “is not to be concerned about personal insults and personal defence.” 117
However, the follower should be concerned with the dignity of the law, “justice, righteousness and truth.”118
There are examples of this in other biblical texts. After Jesus was arrested and while he was being questioned by the high priest, he was struck by an official on the face. “If I said some- thing wrong,” Jesus replied, “testify as to what is wrong. But if I spoke the truth, why did yo strike me?”1 19 Similarly, when the Apostle Paul was ordered to be struck, he replied, “God will strike you, you whitewashed wall! You sit there to judge me according to the law, yet you yourself violate the law by commanding that I be struck!”1 20 Also, Paul asserted his legal rights as a Roman citizen when, as he was about to be flogged, he asked, “Is it legal for you to flog a Roman citizen who hasn’t
48, 28 CATH. BIBLICAL Q. 31, 36 (1966). 13 Id. at 37. 114 HENDRIKSEN, supra note 82, at 310. 115 EARL F. PALMER, THE ENORMOUS ExcEPTION: MEETING CHRIST IN THE SERMON
ON THE MouNT 54 (Ward Publishing 1986). 116 POYTHRESS, supra note 85, at 260. 137 LLOYD-JONES, supra note 71, at 285. 11s Id. 119 John 18:23.
12 Acts 23:3.
even been found guilty?”121 When justice and truth are at stake, and not mere personal vengeance, God’s people may and should speak out. Ultimately, however, after Jesus Christ was struck, he not only offered “his other cheek but [h]is whole body” to achieve redemption for his people.122
(b) The Tunic and the Cloak
Jesus’ second example of justice also involves a role rever- sal, this time between a debtor and creditor. Jesus says, “if someone wants to sue you and take your tunic, let him have your cloak as well.” 123 The tunic was worn as an inner garment and the cloak as an outer garment.124 Debtors gave tunics as security for a loan; only the poorest debtors gave cloaks as col- lateral because they used their cloaks to sleep in.125 God com- mands lenders that “[i]f you take [a] neighbor’s cloak as a pledge, return it to him by sunset, because his cloak is the only covering he has for his body. What else will he sleep in? When he cries out to me, I will hear, for I am compassionate.” 126 Je- sus, however, makes the point that his disciples must be will- ing to give up their possessions, even their bed clothing. In such an act of selflessness, the poorest debtor becomes a credi- tor and a friend. 127 Vaught states that by giving one’s coat away, one can move an opponent “away from an abstract sys- tem of justice to… a higher level of responsiveness.” 128
Jesus later states,
And why do you worry about clothes? See how the lilies of the field grow. They do not labor or spin. Yet I tell you that not even Solomon in all his splendor was dressed like one of these. If that is how God clothes the grass of the field, which is here today and tomorrow is thrown into the fire, will he not much
121 Acts 22:25. 122 LUTHER’S WORKS, supra note 55, at 112. 123 Matthew 5:40. Not all lawsuits are prohibited by other Scriptural passages but
personal vengeance is. The Apostle Paul chastised the early church for resorting to lawsuits among themselves when he wrote, “The very fact that you have lawsuits among you means you have been completely defeated already. Why not rather be wronged? Why not rather be cheated? Instead, you yourselves cheat and do wrong, and you do this to your brothers.” I Corinthians 6:7-8. This reflects the putting aside of individual differences for community values. See Thompson, supra note 79, at 56.
124 BARNES, supra note 102, at 59. 12 HENDRIKSEN, supra note 82, at 310. 12 Exodus 22:26-7; see also Deuteronomy 24.12-3; Ezekiel 18.7; and Amos 2.8. 12 See VAUGHT, supra note 12, at 103. 128 Id.
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more clothe you, 0 you of little faith?129
(c) The Extra Mile
Jesus’ third example of justice also involves a role reversal. A servant becomes a master. At that time postal services did not exist and civilians were asked to convey royal commands and baggage. 130 This was especially common in places con- quered and occupied by a foreign power. 131 Jesus commands his followers to do twice what is asked, even by a hostile gov- ernment. “[W]hat is … servile in the first mile becomes mastery in the second.”132 In the second mile, one becomes a benefactor and even a friend. God has established the authority of gov- ernment.133 Ferguson writes,
When you are “drafted,” Jesus says, and have walked the one thousand paces required by the Roman regulations, keep go- ing. Carry the load one more mile! No soldier has the right to
make you do that. Do it voluntarily. He may see that you have
another Emperor, and belong to another Empire, with princi- ples that are infinitely stronger than the laws of Rome!134
(d) Lending Freely
Jesus’ last example involves someone who may ask for a fa- vor or loan. This appears to be a non sequitur. But it is a refer- ence to biblical law’s long-standing concern for the poor. The book of Deuteronomy recounts
If there is a poor man among your brothers in any of the towns
of the land that the LORD your God is giving you, do not be hardhearted or tightfisted toward your poor brother. Rather be openhanded and freely lend him whatever he needs …. Give generously to him and do so without a grudging heart; then because of this the LORD your God will bless you in all your work and in everything you put your hand to. There will al- ways be poor people in the land. Therefore I command you to be openhanded toward your brothers and toward the poor
12 Matthew 6:28-30. 23 BARNES, supra note 102, at 60. Remember also the example of Simon of Cyrene
who was asked to carry Jesus’ cross. See Matthew 27:32. 131 LLOYD-JONES, supra note 71, at 286. 132 VAUGHT, supra note 12, at 103.
1 See Romans 13:1. 13 FERGUSON, supra note 99, at 138.
and needy in your land.13 5
In other words, lex talionis not only affirmatively requires one to love enemies but also to help the poor. Jesus commands his followers to give generously. Even though they have en- dured a slap, given away their tunic and cloak, and walked an extra mile, they are erect and able to give.136 They give regard- less of what they receive in return.137 “Love can always be in- creased, deepened, its circumference enlarged.”‘ 38 The law re- straining evil acts is also meant to express a lifestyle of grace.
C. Love for Enemies, Giving Meaning to Matthew 5:38 – 42
Directly following our key verses on the lex talionis are Je- sus’ admonitions to love our enemies. 14° Jesus states, “You have heard that it was said, ‘Love your neighbor and hate your en- emy.’ But I tell you: Love your enemies and pray for those who persecute you, that you may be sons of your Father in heaven.”141
Although there are other Jewish and Hellenistic sources that also discuss love for enemies, they are different from Jesus’ command. These other sources were always qualified “by one or more of the following features: a command or permission to hate another person; a qualification of enemy love so that it is not always or in every case demanded; an ambiguous mixture of unrelated directions to love and hate…. -142
Ultimately, here lies the meaning behind Jesus’ last four examples. Because God causes “his sun to rise [upon] the evil and.., the good, and sends rain on the [just] and the [unjust],” Jesus disciples must do good to all people.143 Otherwise, there is no difference between his disciples and those who do not know God. Anyone can respond to kindness with kindness. However, God responds to evildoers with kindness.
1 Deuteronomy 15:7-11; see also John T. Willis, Old Testament Foundations of Social Justice, CHRISTIAN SOCIAL ETHICS 34 (Perry C. Cotham ed., Baker Book House 1979) (discussing the law and social concern in the Old Testament).
13 See VAUGHT, supra note 12, at 105. 137 See LLOYD-JONES, supra note 71, at 278-79 (stating that this is the whole mean-
ing of the preceding verses-selflessness, not pacifism). 18 Davies & Allison, supra note 33, at 306. 139 FERGUSON, supra note 99, at 138. 140 See Matthew 5:43-48. 141 Matthew 5:43-45. 142 For an extensive discussion, see PIPER, supra note 101, at 64. 143 BETZ, supra note 29, at 123 (discussing the cosmogony and ethics in the SM).
The ethics of the SM is grounded in how God loves and preserves his creation. Id. at 123.
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ever, God responds to evildoers with kindness.144 Christian ethical behavior is imitative of God’s example. It is not de- pendent on others’ acts of kindness or evil. It is, however, de- pendent on God’s grace to the whole world as evidenced in Christ.145 Kingdom ethics “combine love of enemies, non- cooperation with evil and the promotion of justice and right.” 46
IV. IMPLICATIONS FOR LEGAL PRACTICE: THE HIRED DOVE
I have examined a brief portion of the SM above, and I will now draw several lessons from it. First, who we are determines our understanding of law and legal practice and that is why the SM begins with the Beatitudes. The SM starts with those who are spiritually broken and dependent on God. Second, if who we are is a redeemed community, then our understanding of the law is spiritual. The end of the law is love. The disciple of Christ is not just interested in actions but in the heart.147 The test of the heart asks whether or not a particular action taken is “for the benefit of others and … [for] the glory of God.” 148
Third, in accordance with an understanding that the law is es- sentially spiritual, Christ calls his disciples to understand that they have no personal right to retaliation but that justice may require the opposite – personal suffering and sacrifice.
So what does a “hired dove” do? The “hired dove” engages in empathetic dialogue with her clients. She urges others to radically question their views of their legitimate rights, natural needs and inclinations.149 If a lawsuit is filed, the “hired dove” urges her clients to do good to their adversaries, not to inflict pain on them. If there is a principle of justice involved, she may litigate, but she should avoid being a tool of malice and bitter- ness. She is to be an active and deliberate peacemaker who seeks restraint, reconciliation, and healing.150 If there is a gov- ernmental regulation or law to be complied with, the hired dove remembers the “second mile” analogy and urges her cli- ent to comply wholeheartedly. However, this does not preclude
14 It is also God’s prerogative to respond to evildoers with vengeance. However, .he has reserved that prerogative only to himself.
– See VAUGHT, supra note 12, at 112. 146 CHILTOM & MCDONALD, supra note 80, at 104. 147 See LLOYD-JONES, supra note 71, at 315. 148 HENDRIKSEN, supra note 82, at 266. 149 Davies & Allison, supra note 33, at 305. 15 See PALMER, supra note 115, at 58.
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lobbying for legislative change. 151 As long as a law exists, law- yers should counsel their clients to cheerfully comply with the spirit of the law.1 5 2 Finally, the hired dove is concerned with charity to the poor. She remembers Christ’s command to give generously. This generosity includes not only her own pro bono service but also counsel to clients. The “hired dove” may encourage her clients to give generously to others; giving is part of the spirit of the law. “[T]he root of social injustice is the heart.”153
Where does this leave us? The SM should be considered not only as a fine religious text, but also as a legal text because it specifically refers to standards of civil law. The SM says to ad- herents, “The meaning of the law is love. Therefore, examine your hearts. Live in such a way as to avoid lawsuits.” For ad- hering attorneys, it says “Counsel in such a way that no one will think of suing your clients. If an enemy starts an alterca- tion, forgive. However, if a principle beyond personal venge- ance is at stake, assert legal rights willingly, all the while guarding your hearts. Remember, the meaning of the law is love.”
151 See LLOYD-JONES, supra note 71, at 288. 152 Tax, immigration and environmental laws come to mind. Furthermore, if a
law is directly contrary to another biblical principle, it should not be obeyed. See Acts 4:19. The difficult topic of civil disobedience must be saved for another discussion.
153 Willis, supra note 135, at 29.