Speech from Robert Cochran on "Christ, Law and the Legal Profession"

The following is the text/outline of a speech delivered by Professor Robert Cochran of the Pepperdine University School of Law at Uganda Christian University on May 31, 2010:

Christ, the Law, and the Legal Profession

I think that it is important that everyone have a vocation, a calling. We all are called by God to serve him in all that we do. The scriptures say that “whether we eat or whether we drink or whatsoever we do, do all to the glory of God.” If that applies to things as mundane as eating and drinking, it certainly applies to the work that we spend much of our lives doing. John Calvin put it this way: all of the world should be a theater to the glory of God. Two topics: Christ and the law; Christ and lawyers.

Christ and the Law

Harsh encounters with law

Jesus earthly life is bookended by significant encounters with the law as it is commonly perceived today--the exercise of power by one in authority. He is born in Bethlehem because “Caesar declared that every man should return to the city of his birth to register to be taxed. Lk. 2:1 Jesus suffered his earthly death when he was crucified by the Roman authorities. He had additional encounters with the law during his life. Herod sought to have him killed shortly after his birth, chasing Jesus and his parents to Egypt. Herod had Jesus’ cousin John the Baptist killed for denouncing Herod’s incest and adultery. In all of these encounters, law plays a negative role, as an instrument of injustice.

Inaugurating the reign of justice

“[In the NT] Jesus is identified as inaugurating the reign of justice.” Wolterstorf
The prophets both foretold the future and spoke about justice. These two roles merged in their prophesies of the coming Messiah. In one of the best-known prophetic passages, Isaiah said:
Here is my servant, whom I uphold,
my chosen one in whom I delight;
I will put my Spirit on him
and he will bring justice to the nations. . . .
In faithfulness he will bring forth justice;
he will not falter or be discouraged
till he establishes justice on earth.

But Jesus was born in a manger and died on a cross. How is he to establish justice on the earth?

Ambiguity Towards Law

Jesus not only had harsh encounters with Roman law, he had harsh encounters with Jewish law. The Romans had given a certain level of legal authority to the Jewish leaders of the day (a sort of a federal system, as we would call it in the United States, where the US government exercises some authority, but gives other authority to the states).

During his ministry, there was substantial controversy about Jesus’ relationship to the Jewish law, also called the Mosaic law.
Jesus was both supportive and critical of law. On the one hand, he said that he would not remove the smallest part from it. He healed lepers and had them go to the civic authorities. He followed the Mosaic law, law as a good thing. Jesus kept the Sabbath, not as interpreted. A law abiding family. Took all steps required by law. Lk. 2:21-22 Though tempered with mercy—Joseph wanted to divorce Mary quietly rather than disgrace her, or worse—have her killed because of what appeared to be her adultery. Mt 1:16

He condemned those who were most scrupulous in obeying and enforcing it. As At times Jesus showed great flexibility as to the law. In apparent violation of the Mosaic code, Jesus healed on the Sabbath. When the Pharisees condemned his disciples for picking and eating grain on the Sabbath in violation of the Mosaic law, he responded: ‘The Sabbath was made for man, not man for the Sabbath.’ He said “Man is not made for the Sabbath; the Sabbath is made for man.” This recognizes a strong tendency as to all of law. Human law tends to treat man as being made for law. Government officials tend to treat man as being made for law. There is a danger that lawyers will treat man as having been made for law. Instrumental value of law.
He condemned a group that was about to stone a woman to death under the Mosaic code for committing adultery: ‘Let him who is without sin cast the first stone.’ He rejected the Mosaic laws concerning clean and unclean food. In his Sermon on the Mount, Jesus contrasted his teachings, which dealt with the attitude of one’s heart (don’t be angry, don’t lust), with the external strictures of the Mosaic law (don’t murder, don’t commit adultery). Nevertheless, at times, Jesus affirmed his commitment to the law, saying that he came to ‘fulfill’ (literally ‘fill up’) the law.

It is probably best to see Jesus’ role as one of pointing to the true purpose of the moral law, which was to transform hearts to the point where we will want to obey the moral law scrupulously.

The Law is Secondary, but Important

The central theme of Jesus’ moral teaching was that what humans need is a change of heart. Law controls only the external. Civil law restrains wrong behavior. It will never succeed in changing the heart. Grace and truth does. (Law came by Moses; grace and truth by JC).

Murder - 21"You have heard that it was said to the people long ago, 'Do not murder,[a] and anyone who murders will be subject to judgment.' 22But I tell you that anyone who is angry with his brother[b]will be subject to judgment.

Adultery - 27"You have heard that it was said, 'Do not commit adultery.'[e] 28But I tell you that anyone who looks at a woman lustfully has already committed adultery with her in his heart.

Change the heart and you change behavior. Lk. 6: 43. “The good man brings good things out of the good stored up in his heart, and the evil man brings evil things out of the evil stored up in his heart. For out of the overflow of his heart his mouth speaks.”

Kingdom of God

Repent for the kingdom of heaven is near. Mt 4:15
Summary of him: “preaching the good news of the kingdom” Mt. 4:23
Lord’s Prayer: “your kingdom come, your will be done on earth as it is in heaven.”
“Seek first his kingdom and his righteousness, and all these things (food, drink, clothing) will be given to you as well.” Mt 6:25-34

The Kingdom of God is not primarily about law. In "The Divine Conspiracy" Dallas Willard emphasizes that the Kingdom comes in by changing hearts, not through force. But, of course, law is all about force. Indeed, the more the Kingdom comes, the less we will need much of law. The Kingdom of God is centrally about the changing of hearts. The changing of hearts may drive you to become in law because of your love of neighbor.

Jesus, the Mosaic Law, and the Role of the Legislator

What are Christians to do with the Mosaic law? Christian positions range everywhere from dispensationalists who believe that the Mosaic law applied only to ancient Israel and has no relevance for Christians today to theonomist postmillennialists who believe that the Mosaic law is the ideal toward which our law will evolve as the Kingdom of God emerges.

In what may be Jesus’ most helpful teaching regarding the civil law, he addressed the only section of the Mosaic law that discusses divorce. The section of the Mosaic law does not specifically approve of divorce, but mentions it in a context where a husband finds that his wife is displeasing because there is “something indecent” about her.
As numerous commentators have noted, the meaning of this section was hotly disputed in Jesus’ time among Jewish legal scholars. Though the only explicit regulation is the prohibition of a man remarrying his ex-wife following her second divorce, the provision appears to accept divorce where the wife ‘has become displeasing to [the husband] because he finds something indecent about her, and he writes her a certificate of divorce.’ Shammai argued that under the Mosaic code, adultery was the only basis for divorce. Hillel argued that the code permitted divorce for almost anything.
Here is the account of Jesus’ discussion of the matter:
Some Pharisees came to [Jesus] to test him. They asked, ‘Is it lawful for a man to divorce his wife for any and every reason?’
‘Haven't you read,’ he replied, ‘that at the beginning the Creator “made them male and female,” and said, “For this reason a man will leave his father and mother and be united to his wife, and the two will become one flesh?” So they are no longer two, but one. Therefore what God has joined together, let man not separate.’
‘Why then,’ they asked, ‘did Moses command that a man give his wife a certificate of divorce and send her away?’
Jesus replied, ‘Moses permitted you to divorce your wives because your hearts were hard. But it was not this way from the beginning. I tell you that anyone who divorces his wife, except for marital unfaithfulness, and marries another woman commits adultery.’

Jesus pushed the Pharisees beyond the controversy, back to God’s original purpose that marriage be permanent, quoting two sections of Genesis. Nevertheless, he concluded by appearing to accept the Mosaic rule, basically adopting Shammai’s interpretation that ‘marital unfaithfulness’ is the only basis for divorce.

For our purposes, the important part of the exchange is Jesus’ reference to the Mosaic law: ‘Moses permitted you to divorce your wives because your hearts were hard. But it was not this way from the beginning.’ In this passage Jesus did not question the validity of the Mosaic law, but he noted that its rules deviated from the moral ideal. Only a few verses previously, Jesus identified the ideal as the permanent union of husband and wife and noted that Moses allowed divorce ‘because your hearts were hard.’ Knowing all too well our fallen human nature and consequent inability to conform to the ideal, he approved of positive law that did not impose the ideal.

It is likely that Moses envisioned the harmful consequences that would arise if no divorce was allowed: husbands would abandon wives and take other women without benefit of divorce; husbands would father illegitimate children; it would be unclear whether abandoned women were free to re-marry; prospective husbands would risk being accused of adultery if they married abandoned wives; abandoned wives and children would be destitute; inheritance rights would be unclear and inheritance disputes would generate conflict; children of new relationships would not be provided for at death; and hostile couples might remain together, causing harm to each other and their children. In light of these consequences, Moses allowed divorce.

Many commentators speak of the Mosaic divorce legislation as a grudging acceptance of divorce, as if it is an unusual deviation in the positive law from the moral ideal.

Hebrew law does not institute divorce, but tolerates it, in view of the imperfections of human nature….
Divorce is a bad custom which has grown up amongst a degenerate people, and the Mosaic law tolerated it as an accommodation to a low level of moral concern.

Though I do not disagree with these statements, I think that they are wrong to imply that the Mosaic divorce legislation is somehow unusual. It is not the exception. Many elements of the Mosaic code should be understood as positive law drafted in light of human hardheartedness. Two early church fathers, Irenaeus and Justin Martyr, went so far as to argue that much if not all of the Mosaic law should be seen merely as a concession to the hardness of human hearts.

This view, that Jesus affirmed Moses’ creation of best-practical-alternative laws, may provide a basis for understanding some of the troubling aspects of the Mosaic code. For example, the Mosaic code need not be taken to have morally approved of slavery, any more than to have morally approved of divorce. Jesus’ reaction to slavery provisions in the Mosaic code might well have been similar to his reaction to divorce: ‘Moses permitted slavery because your hearts were hard. But it was not this way from the beginning – it is not the ideal.’ Augustine argued that in the beginning, it was not God’s intention that people be under the authority of one another. According to Augustine, man was appointed to rule over the rest of God’s creation (citing Gen. 1:26) but not one another. ‘God wanted rational man, made to His image, to have no dominion except over irrational nature. He meant no man, therefore, to have dominion over man, but only man over beast.’ Augustine appears to have accepted the reality of man ruling over man as a result of the fall, but Jesus’ comments on divorce suggest that it is appropriate for legislation to seek to get back to God’s ideal. Under this view, if the social circumstances are such that people would accept a rule that is closer to the divine ideal (on divorce or slavery), the wise legislator should pursue it.

Jesus might also have said similar things about some of the harsh punishments of the Mosaic code, possibly including capital punishment. Such punishment was a prudential response to the situation of the time – a nomadic people for whom the possibility of life imprisonment was impossible – but in a different situation the law might more closely approach the ideal; the death penalty might be abolished or reserved only for the worst of crimes. This is consistent with the recent Catholic position on the death penalty.

Jesus’ comments on the Mosaic divorce law suggest an enormous opportunity (and responsibility) for judges and legislators. They must prudently and creatively craft laws with eyes fixed on both God’s ideal and on the practical reality. The task of the Christian legislator or judge is to identify God’s ideals and to determine how to advance those ideals in light of the current social situation.

Last week, I gave a series of lectures in Rwanda on family law. They face a pragmatic challenge of this sort. Right now, the law requires parents to approve of marriages. The parents of many brides require a substantial dowry before they will give their permission. Should the law abolish the requirement of parental permission? Right now, many couples are opting to live together without the protections of legal marriage, because the young man cannot afford the dowry. Would it be better to abolish the requirement of parental permission if more young people would marry? But if we make entry into marriage easier, that is likely to lead to more divorce. You can see that what is called for is wisdom in light of the biblical ideal and the hardness of human hearts.

Some have criticized modern lawmakers for failing to enact ideal biblical standards. On the issue of divorce, one commentator has said: ‘Brethren and fellow-citizens, I believe that our lawmakers are to blame for allowing [no-fault divorce] laws to exist as they do, and not bringing the law of divorce in these United States to the scriptural standard.’ But if my understanding of Jesus’ teaching on the law of divorce is correct, the positive law should not necessarily adopt the moral law. The law should seek the ideal, but should do so in light of its practical impact.

Modern divorce law is an area where Jesus’ model could be applied. The ideal – permanent union – has not changed, nor has the hardness of people’s hearts or the danger that a rule prohibiting divorce would yield worse results than a rule allowing it. In the 1960s and 70s in the United States, legislatures in almost all jurisdictions moved from a fault-based divorce system to a no-fault divorce system. The law now provides little or no deterrence to divorce. Divorce can be obtained easily by either party based on any or no reason. As several studies have shown, the victims of easy divorce are most often women and children, who have become modern analogues to the Old Testament’s widows and orphans. The hardness of human hearts may warrant laws that discourage divorce without demanding the ideal of permanent marriage. Thoughtful lawyers, legislators and law professors wrestle with alternatives to easy no-fault divorce, proposing longer waiting periods (especially for parents of young children), counseling requirements and covenant marriage legislation – which allows couples to agree at marriage to certain impediments to divorce.

Jesus’ comments regarding the Mosaic divorce law suggest that lawyers, legislators, judges, and citizens have a high calling. They do God’s work as they prudently seek to identify laws that will move us toward God’s ideals in light of the practical problems of human sin in the current situation.

Love of Neighbor

At one point, ‘an expert in the law’ ‘tested’ Jesus with another question, ‘Teacher, which is the greatest commandment in the Law?’ Jesus answered that the first is love of God and added, quoting the Mosaic law, ‘the second is like it: “Love your neighbor as yourself.” All the Law and the Prophets hang on these two commandments.’ Later, another lawyer, seeking to ‘justify himself,’ asked concerning this second commandment, ‘Who is my neighbor?’ Jesus responded with the story of the Good Samaritan, in which the hated Samaritan serves as the role model, caring for the needs of a man who has been beaten and robbed.

To many, the command that we love our neighbors seems odd. Nowadays, love is generally thought of purely as an emotion, something beyond our control, but the Greek word translated as ‘love’ is agape, an act of the will, a matter that is subject to the control of the individual. We are to treat our neighbors as we would want to be treated.

There are two messages here for the Christian in the field of law. The first concerns the purposes of the law. Jesus identified one of the ideals toward which the law should reach, suggesting that the Mosaic law expressed what it means to love our neighbors. The Mosaic positive law required the Jews to show love toward their neighbors in some respects. Just as parents teach their children to love each other by requiring them to go through the motions of forgiving, sharing, etc., it may be that requiring citizens to behave well toward one another will serve to teach them to love. Requiring farmers to make the crops at the edges of their fields available to the poor may teach them to love the poor and to be generous to them. Calvin notes that the purpose of the Mosaic positive law was ‘to preserve that very love which is enjoined by God’s eternal law.’ In Calvin’s view, ‘every nation is left free to make such laws as it foresees to be profitable to itself. Yet these must be in conformity to that perpetual rule of love.’

A second message is that lawmaking itself should be an act of love toward the neighbor. Jack Sammons implies this possibility in his discussion of the story of the Good Samaritan. Without diminishing the importance of the Samaritan’s individual acts of care – saving the injured man, binding his wounds, and taking him to an inn – we should recognize that those who develop laws can also serve their fellowman through legislation. Legislation might deal ‘with the underlying problems of the dangerousness of passage to Jericho, or the need for medical care to travelers in distress, or, for that matter, the hardhearted financial shrewdness of innkeepers.’ The development and enforcement of wise laws can be among the most loving acts in which a person can engage.

Jesus’ Call for Justice

Once you have had a change of heart, your love of neighbor is likely to lead you to be concerned about justice because of your love of neighbor.

“Dikaiosume” is one of the New Testament words for justice. At times our translators translate it as meaning justice, at times as righteousness. A look at other texts from that time illustrate the ambiguity of its meaning. In Plato’s Republic is translated “justice.” In the most common translations of the Sermon on the Mount, it is translated righteousness. “Blessed are those who hunger and thirst for righteousness.” Should this be, “Blessed are those who hunger and thirst for justice”? The common translation actually runs counter to the thrust of the Sermon on the Mount, which argues that the heart attitude is more important than a focus on right actions. Righteousness is primarily a trait of personal character—today carrying a negative connotation. Justice refers to an interpersonal situation; persons are related to one another in a certain way. Righteousness—“personal moral rectitude.”

The next place Dikaiosume is used is “Blessed are those who are persecuted for righteousness’ sake. Note the very different sense of this if it is ““Blessed are those who are persecuted for justice’s sake.” Nicholas Wolterstorff, in his wonderful book, Justice: Rights and Wrongs, states the following: “Apparently, the translators were not struck by the oddity of someone being persecuted because he is righteous. My own reading of human affairs is that righteous people are either admired or ignored, not persecuted; people who pursue justice are the ones who get in trouble.” 111

Christ and the Legal Profession

What is a lawyer? A lawyer is someone who speaks for someone who can’t speak so well for himself. It may be in court or it may be in business negotiations. The lawyer is a servant, doing something for someone that he can’t do for himself. This is a worthy calling. Beyond assisting the individual client, service as a lawyer typically does at least one of two other things. It helps to secure justice in a country—as lawyers argue their cases, judges and juries are able to make wise decisions. Number two, it helps to establish commerce within a country, as lawyers help to create deals that will employ workers and provide services. You might say that practicing law is an expression of love, whether the lawyer recognizes it or not. Practicing law helps people.

In these respects, almost any lawyer is doing a good thing most of the time. But where should being a lawyer and a Christian make a difference? In my view, it makes a difference in at least three places. I will illustrate with a couple of examples from my practice.
Choice of clients – Sidney. A companion of the guilty.
Care for clients – Sidney. Go beyond what is expected.
Counseling of clients – Divorce lady. Settle. Consider the consequences.