One significant challenge confronting any state legal system is defining what speech should be permitted, or, more precisely, what speech should and should not enjoy protection from governmental interference. While the parameters of freedom of speech have been shaped and reshaped over several centuries, Anglo-American jurisprudence has not yet fully defined one of the several categories of speech that is not—and should not be—protected from interference. This is the category of incitement. Jewish law (halakhah), too, has long wrestled with this category of speech and has yet to define its contours clearly. This paper explores how these two legal systems define this category of speech, whether their approaches are commensurable, and how each can benefit from nuances found in the other.

Unlike modern Western law, which is generally assumed to be the product of human deliberation about the common good, at least in democratic countries, Jewish law is a normative system in which adjudication is subject to religious commandments. The judge bears responsibility not only to the litigants standing before him but also to God, an allegiance which most modern Western judges do not, at least explicitly, recognize.

Because of the systems' assumptions that law is made by humans and thus can be understood by human judges given the appropriate information, modern Western legal systems infer that judges are under obligation to render a decision on any legal question brought before them, even in doubtful cases. Secular-civil law views the resolution of a dispute as preferable to its non-resolution, even if the judge has reservations about his decision. The judge who is hesitant to decide a case is considered to have failed to properly discharge his judicial role, the very essence of which is the regulation of human conduct in one form or other. The obligation of the judge to render a decision on every legal question both implies and requires that a judge exercise creative discretion in at least some cases where the law or its intended application are not clear to ensure the rendering of a clear and unequivocal decision on any legal question brought before him. As a consequence of this unequivocal demand that the judge decide, most judges must make peace with the possibility that their rulings may later be discovered or determined to have been mistaken.

The figures of both Moses and Muhammad stand in the United States Supreme Court, included among the great lawgivers of history depicted in two friezes along the North and South walls of the Courtroom. Moses, who is seen carrying the Ten Commandments, is honored as the “prophet, lawgiver, and judge of the Israelites,” with the Supreme Court's tourist information sheet explaining that “Mosaic Law” is “based on the Torah, the first five books of the Old Testament.” Muhammad is described as the “Prophet of Islam” and carries both a sword and the Qur'an, the “primary source of Islamic law.”

Yet the parallel depictions of these two prophets in the U.S. Supreme Court belie the very different respect that the laws they are associated with have received in the U.S. judicial system. Jewish law or legal principles are generally cited by courts with approval, often to add perceived moral and ethical authority to a court's decision. For example, in the U.S. Supreme Court's well-known Miranda v. Arizona decision, the Court declared that the privilege against self-incrimination was an ancient right, with analogues that could be found in the Bible, quoting the great medieval Jewish scholar Maimonides for support: “To sum up the matter, the principle that no man is to be declared guilty on his own admission is a divine decree.”

The twelfth century canon lawyer Gratian once wrote “Feed the man dying of hunger, because if you have not fed him you have killed him.” If Gratian were alive today, he might take a look at the current state of global health and say, “Succor the woman dying of disease, because if you have not helped her you have killed her.” Both of these statements express an ethical obligation: if I have food, and someone else who is hungry does not, I am obligated to share my food. Likewise, if I have medicine, and someone else who is sick does not, I am obligated to share my medicine.

Unfortunately, with regard to medicines and other essential products, modern institutions of intellectual property often fail to enforce or even recognize such ethical obligations. In some ways, these institutions uphold an even harsher attitude toward intellectual property than other types of property. With food, even if the hungry person receives no bread, he is still permitted to produce his own. With medicines, medical technologies, and other types of goods that are protected by institutions of intellectual property, the law can and often does prevent the sick person from producing her own.

Discussions about the historical meaning of religious liberty in the United States often generate more heat than light. This has been true in the broad discussion of the meaning of the First Amendment in American life. The debate between “separationists” and “accommodationists” is often contentious and seldom satisfying. Both sides tend to believe that a few choice quotes that seem to disprove the other side's position prove their own. Each side is tempted to miss the more nuanced story that is reflected in the American experience. In recent years, this division has been reflected among those who call themselves Baptists. One group, best represented by the work of the Baptist Joint Committee for Religious Liberty, tends to argue that the Baptist heritage is clearly steeped in the separation of church and state. The other group, probably best represented by the Ethics and Religious Liberty Commission of the Southern Baptist Convention, tends to reject the term separation and sees value in promoting an American society that “affirms and practices Judeo-Christian values rooted in biblical authority.” This group tends to reject the separationist perspective as a way of defending religious liberty. They argue that Baptists have defended religious liberty without moving to the hostility toward religion that they see in separationism. Much like the broad story of America, the Baptist story is considerably more complicated than either side makes it appear.

Constitutional scholars pay particular attention to the historical context of the First Amendment, to the relationship between the state and religion in the early republic. Missing from this academic examination of church-state history, however, is any serious consideration of the views of the Reformed Presbyterian Church, popularly known as the Covenanters, views that challenged the fundamental presuppositions of the United States Constitution, both as established in the early national period and as applied today. A typical modern American, citizen or scholar, cannot help but be startled by a coherent, closely reasoned body of doctrine that trenchantly criticizes such fundamental American assumptions as government by consent of the governed or the free exercise of religion. Covenanter criticism of the church-state relations not only presents a model of church and state radically different from today's conventional American theories, but also throws light on the American paradigm as it existed during its developmental period. Reformed Presbyterians of the early republic criticized the federal Constitution from a world view so radically different from that of the founders that their criticisms highlight aspects of the generally accepted constitutional regime in ways that conventional constitutional scholars have scarcely considered.

To what extent can human legal thought be encompassed by the divine and share its character, or alternatively, stand free of the divine and constitute an autonomous field of normativity? Answers to these large questions may understandably differ, yet answers appear both necessary and important. If human legal thought is somehow brought within the divine, it may share its immutable character, and ossify. Islamic law, at least in its Sunni variant, may currently represent an example of this. If human legal thought stands free of divinity, it may be fundamentally lacking in authority. Examples are found in failed states, and perhaps elsewhere. The religions and laws of the world therefore provide answers, often nuanced, to the questions, and even correctives to the answers they provide. The debate turns around the notion of tradition.

In my book, Pro-Justice Ethics, I define justice as an act of protesting, preventing, and remedying situations that arouse a sense of injustice. Formally, injustice is the violation of fairness, equality, and dignity; and the experience of injustice activates the justice imperative: “Act so as to promote justice in all situations for all times and places.” The beginning of ethical theory is the critique of injustice.

In this essay, I examine current situations of freshwater scarcity from the standpoint of pro-justice ethics. Water scarcity means that the amount of water withdrawn from rivers, lakes, or aquifers is so great that existing water supplies cannot satisfy human and ecosystem requirements. This essay (1) surveys factors of freshwater scarcity, (2) exposes the injustices of corporate water privatization, (3) discusses the concept of sacramental commons in the context of public trust doctrines, and (4) argues for a human right to water in relation to the intrinsic value of water in nature.