Is trial rhetoric, with its shadings, deliberate obfuscations, and outright deceptions, directly justified and limited by the same moral considerations which control important private conversations, where the same devices may sometimes be appropriate? Is a trial like any other dialogue that can be called moral? Or does such speech find its justification and limitations solely in its purely instrumental relation to the preservation of ordinary moral values—justice or respect for rights—as does killing in warfare? Is a trial lawyer's talking like a soldier's killing? But this cannot be right. Surely a lawyer's speech can contribute to a loss of life, liberty, or property, but dialogue, as the specifically moral medium of human relations, would seem intrinsically valuable, the preferred medium for things of public concern, the polar opposite of violence. Perhaps, then, the conversation which takes place in the courtroom is both controlled by internal, noninstrumental norms, as in the first view, and discontinuous with ordinary moral conversations, as in the second: a form of distinctively political argument, intrinsically valuable, not subject to ordinary moral stric-tures, a realm apart.

When the federal court declared Arkansas' “equal time” statute (requiring that public school science teachers present both creation and evolution “theories” in the classroom) unconstitutional, many citizens concerned with “keeping religion out of the schools” were relieved. A second look at that controversy, the parties involved, and the court's opinion, however, reveals an unsettled atmosphere. For a great many Americans in the Protestant evangelical tradition, the Arkansas experience was only the first round of a long legal fight, the opening battle of a war of worldviews. The matter is far from settled, not only because of similar “equal time” laws now being drafted, passed, or challenged, but because the advocates of such legislation have learned from the Arkansas failure: the earlier bill was not carefully worded, their position was not properly presented, and the trial judge was allegedly biased. The battleground has moved of late to Louisiana, where a new version of creation-science legislation is being attacked and defended, but McLean v. Arkansas Board of Education remains as the most recent full trial in the controversy.

“It is my opinion,” testified the chairman of the Hopi Indian Tribal Council in the unsuccessful effort of the Hopi (and the Navajo) to stop further development of a ski resort on U.S. Forest Service land in the San Francisco Peaks in North Central Arizona,

With such high stakes involved it is little wonder that the Hopi Indian Tribe resorted to the courts. Yet, such a step is a high risk venture. The immediate costs in terms of time, money, and emotional involvement are likely to be high. Further, every such investment involves the possibility of loss of the case and with it the additional possibility that the decisive language of the court may find its way into opinions in similar cases. Most importantly, perhaps, an attempt to defend a tribal religion in court could involve subtle longer range costs. Paradoxically, an effort to defend tribal religion may also undermine it.

It is easy to be depressed about the state of law these days. As the voters have become increasingly fearful and hateful, legislators and judges have made our law less generous and honorable. The death penalty has been reintroduced and corners have been cut in procedural protections to speed it along. The honorable basis of the exclusionary rule—the unwillingness of judges to countenance wrong-doing—has been abandoned. Legal aid for the poor has been cut back. The steam has gone out of civil rights enforcement. There no longer seems to be a vision among lawyers that law can be a source of nourishment for society. The positivist vision of law—the will of the strong—dominates legal thinking. Even the liberals, “burnt-out” and cynical in the light of legal realism, do not think of law as special.

Saul, a Jew, later called Paul, was born in the predominately Greek city of Tarsus located in Asia Minor. The Greek Jew was a zealous Pharisee and a contemporary of Jesus although he had not seen him. One day in approximately 35 A.D. he was traveling to Damascus to arrest Christians who were to be punished (persecuted). On the road to Damascus he was met by Christ, who asked him: “Saul, Saul, why do you persecute me? And he (Paul) said, ‘Who are you Lord?’ And he said, ‘I am Jesus whom you are persecuting …’” (Acts 9:4-5). Paul fell into a coma and lost his sight which was restored three days later by Christ's agent. He was utterly convinced and never doubted that he had been authorized by Christ to be an apostle.

The most important facts that should never be lost sight of are, first, that Paul's experience on the road to Damascus was so dramatic, emotional, and intense that his consequent profound faith in Christ must supply the premise of any interpretation of his epistles. Second, quite different but also extremely important is the almost universal agreement that Paul was a genius. In sum, we are dealing with the discourse of a genius, a very emotional one, who had an overwhelming experience that made faith in Christ paramount in all aspects of his subsequent life.

Judges are seldom content merely to annul the particular solution before them; they do not, indeed, they may not, say that taking all things into consideration, the legislators' solution is too strong for the judicial stomach. On the contrary they wrap up their veto in a protective veil of adjectives such as ‘arbitrary,’ ‘artificial,’ ‘normal,’ ‘reasonable,’ ‘inherent,’ ‘fundamental,’ or ‘essential,’ whose office usually, though quite innocently, is to disguise what they are doing and impute it to a derivation far more impressive than their personal preferences, which are all that in fact lie behind the decision.

John Calvin's (1509-64) theology, as expounded in his definitive work, the Institutes of the Christian Religion, and in his topical theological treatises, biblical commentaries and sermons, may be accurately described as a lifelong meditation on the law of God. And, as was true for the Psalmist David (Psalm 119), his meditation is characterized by delight, praise, and thanksgiving for the law, in all its various forms and uses; as a blessing, a gift of a gracious God solicitous of the welfare of his chosen people.

In order to teach this positive view of the law properly and to evoke a similar response of appreciation for the law from Christians, Calvin attempts in his theology to present “the whole doctrine of the law” or “the whole office of the law.” He takes care, therefore, to avoid some of the more common partial theological interpretations of the law of his day. Specifically, in his theology he strives: not to place inordinate emphasis on the negative, punitive function of the law, as Luther was prone to do; not to ignore the punitive function of the moral law, as the “papists” were wont to do; not to reject the benefits of civil law, as the Anabaptists tended to do; and finally, not to reject the law altogether, as the Libertines did. In response he carefully constructs a balanced and nuanced view of the law that incorporates a variety of forms and a variety of uses (both negative and positive) of the law. The following presentation of his understanding of the law in relation to creation, sin, justification, and sanctification is an attempt to summarize that complex position.

There is a great deal of confusion in the West regarding the meaning of Jihad and the role it is playing in shaping the Muslim world. Indeed, it has acquired a pejorative connotation in the minds of many Westerners. The purpose of this discussion is to present an accurate understanding of the concept of Jihad.

Islam emerged in the seventh century in Arabia. It grew rapidly and in less than a hundred years established the early Islamic state—an empire stretching from Spain across North Africa, and from the Middle East to the borders of China. It was a state greater in size than the Roman Empire at its zenith.

The historical importance assigned to Islam has been controversially assessed. Some have denied that it is a significant world force, others have “grudgingly” recognized its importance while others have seen it as a pivotal event in world history. We take this latter view: Islam should be recognized as a major force of revolutionary change in the world order. Harold Berman, a contemporary commentator on law and revolution in the west, gives a list of six revolutions which changed the Western world. He provides a helpful list of patterns which emerged from those revolutions which he identifies as fundamental change, rapid change, violent change, lasting change, and change in the whole social system. Each revolution sought a legitimacy in fundamental law, a remote past, and an apocalyptic future. Each took more than one generation to establish its roots. Each eventually produced a new system of law which embodied some of the major purposes of the revolution and which changed the Western legal tradition, without destroying it. The appearance of Islam in the seventh century meets these criteria. Using Berman's framwork Islam can be viewed as truly revolutionary.

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

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

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

Professor Milner S. Ball extends an invitation to creativity. His essay offers a provocative new way to think about law. He examines neither specific codes and pronouncements nor traditional theories of jurisprudence. Ball instead takes a radically new tack in directing our attention to the much broader ways in which our society conceptualizes and expresses law. Carefully avoiding the use of definite and indefinite articles with the word “law,” he suggests that law possesses a far more powerful essence than simply functional or utilitarian qualities. Within the context of his metaphorical thinking, law becomes an all-pervasive experience which embodies and reflects our experiences and assumptions. If one takes Ball's suggestion seriously, which I do, that metaphors are “a fundamental mode of understanding and experience,” then the task in part becomes to expose the substance of such an understanding and experience.

There is a metaphorical reciprocity between theology and law. In brief, and in sum, let me begin in this way in grateful acknowledgment of Professor Ball's probing and provocative, fascinating, and instructive analysis, which sets out from the other pole of this reciprocity. At times, his search for an alternative to the dominant metaphor for law leaves the reader in some bewilderment and tempted to take cover in that salutary squib, offered from time to time by The New Yorker under the caption: “Block that metaphor!” As though anticipating that rude and facile exit from the search, Professor Ball is careful to provide an awesome and safer harbor in the paradigmatic law of the sea. This paradigm conceals both the alternative sought for and the unexpectedly promising expectation that—as things penultimate express and make room for things ultimate—the exciting prospect is that the lion and the calf do lie down together. “For the Lamb in the midst of the throne will be their shepherd, and he will guide them to springs of living water;… and there will be no more sea” (Isaiah 11:6-9; Revelation 7:17, 21:1). Even Woody Allen will be able to join the calf and the lion in the exchange of sleepless nights for waking and sleeping amidst the peace which passes all understanding (Philemon 4:7).

Milner Ball's essay, and all of his work, ring with hope; that is, both with his clear-sighted, scholar's interest in finding and telling the truth, and with the optimism that comes of his belief that chaos has been overcome. His thought is an inspiration; and his lyrical prose is, for all of its somber truth, a joy to read.

In the spirit he brings to his work, I suggest that the Hebraic religious tradition contains a richer theological basis for the claim that law is a medium (or, perhaps more modestly, a conversation) than he seems to allow for; and I suggest that there is perhaps more hope to be found in human relationships in a lawyer's professional life than there is in the institutional forms provided by the government—more in the law office than in the administrative apparatus that Professor Ball prefers to invoke for examples of medium.

With those suggestions out of the way, I want to argue that Professor Ball's characterization of property ownership as “the apparatus of bulwark law” is premature. I want to suggest that the bulwark-like difficulties in property law are less the essence of ownership than a perversion of ownership.

I begin this too-brief response to Milner Ball's exciting lecture with my favorite metaphor. From W. H. Auden's concluding chorus in “For the Time Being”:

Spending the 7th to the 9th of November on the campus of Washington and Lee University in colloquium on the theology of law (my notion of what it was all about), was a “unique adventure.” I owe both Professors Ball and Shaffer, as well as our colleagues in the colloquium, a great thanks for “redeeming my life from the ordinary,” during those unique days.

My hope would be that Prof. Ball's lecture and his subsequent completed and published work may set off the kind of external dialogue and internal growth in other lawyers and politicians as it did in me. I hope that many will argue at length whether law is basically a medium or a bulwark, but there is no argument that the work of Milner Ball is a catalyst of conversation much needed by the inert solutions of today's legal profession.