Reinhold Niebuhr (1892-1971) possessed wide-ranging interests and a unique penchant for intellectual synthesis which understandably commended him to a far broader audience than is normally accorded theologians in this desacralized age. Niebuhr's orientation was theology and politics, and by his own admission, he saw himself working out of the context of Christian social ethics. Precisely because this was the framework of his labors, Niebuhr figured and continues to figure prominently among those persons whose interests center upon social, political, and ethical concerns so pertinent to the domain of law. Niebuhr neither fashioned himself a legal expert, nor did he conceive of himself as a legal theorist. Nonetheless, because of his standing in contemporary Protestantism, and because of his orientation as a theologian of social ethics, Niebuhr finds himself in the rather select circle of theologians who have something of note to say about the place of law in the affairs of humankind.

Political theorist Hans Morgenthau called Niebuhr “the greatest living political philosopher of America, perhaps the only creative political philosopher since Calhoun.” In this context, Gordon Harland makes the point that Niebuhr's “theological and political thought forms one consistent whole: and that there is a “vital organic relation between Niebuhr's social and political thought and the ultimate reaches of his theological reflections.” It is because Niebuhr spoke with conviction out of the Biblical tradition that he was concerned about the relationship of love to law. And precisely because he spoke convincingly as a political realist, he was concerned with the relationship between justice and law. But in speaking as both theologian and political realist, Niebuhr's approach to the problem of law was articulated in terms of the dialectical relationship between love and justice.

“[T]he estate of marriage has fallen into awful disrepute,” Martin Luther declared in 1522.

There are many pagan books which treat of nothing but the depravity of womankind and the unhappiness of the estate of marriage. … Every day one encounters parents who forget their former misery because, like the mouse, they have now had their fill. They deter their children from marriage and entice them into priesthood and nunnery, citing the trials and troubles of married life. Thus do they bring their own children home to the devil, as we daily observe; they provide them with ease for the body and hell for the soul.

Furthermore,

the shameful confusion wrought by the accursed papal law has occasioned so much distress, and the lax authority of both the spirituai and the temporal swords has given rise to so many dreadful abuses and false situations that I would much prefer neither to look into the matter nor to hear of it. But timidity is no help in an emergency.

The great and chief end … of men's uniting into commonwealths, and putting themselves under government, is the preservation of their property (John Locke).

The transformation of scattered private property, arising from individual labour, into capitalist private property is, naturally, a process incomparably more protracted, violent, and difficult, than the transformation of capitalist private property, already practically resting on socialized production, into socialized property. In the former case, we had the expropriation of the mass of the people by a few usurpers; in the latter, we have the expropriation of a few usurpers by the mass of the people. (Karl Marx).

Conditions of the common life of peoples have undergone a radical transformation from the seventeenth century to the present. The character of daily work, the form of family life, the structure of nations and empires in our times are fundamentally unlike those of three centuries ago. In the economic sector, property is among the categories of thought and practice whose features have been transfigured during the period.

One of the most interesting features of biblical law is the extent to which it is pervaded by narrative. Many biblical laws have a quasinarrative form, while others include within themselves a narrative reference of some sort. In their present context, all biblical laws have a narrative setting. Wherever one finds law in the Bible, one is in the presence of narrative as well.

Despite its pervasiveness, this juxtaposition of law and narrative poses something of a challenge to the reader of the biblical text. Certainly, these two genres may be seen to call into play different conventions of reading. What, then, is the effect of their persistent association on how one reads the text of which both are a part?

What is the difference between the conventions underlying our reading of biblical narrative and biblical law? One difference may perhaps be illustrated by comparing the following two passages:

The LORD said to Moses, ‘Yet one more plague I will bring upon Pharaoh and upon Egypt; afterwards he will let you go hence; when he lets you go, he will drive you away completely.’ (Exodus 11:1)

The LORD said to Moses and Aaron in the land of Egypt, ‘This month shall be for you the beginning of months; it shall be the first month of the year for you.’ (Exodus 12:1-2)

Taken as a whole, the Roman Catholic Bishops' 1983 pastoral letter on war and peace, “The Challenge of Peace, God's Promise, and Our Response” has two purposes: first, to assist Catholics in the formation of their consciences; and, second, to contribute to the ongoing public policy debate concerning the morality of war in general, and of nuclear war in particular. This article will address the stated purposes of and the suggestions made in the pastoral letter from the vantage point of American statutory and constitutional law. It will make no attempt to provide definitive legal answers to the many questions raised by and in the letter, for there are none in this complex and challenging area of law. Its purpose is to raise some of the practical legal and moral questions which are critical to the conscientious choices of the individuals to whom the letter is addressed: government officials, citizens, members of the armed services, workers in defense industries, clergy and religious and others.

The letter calls upon each person to whom it is addressed to “probe the meaning of the moral choices which are ours as Christians” respecting the issue of nuclear war, and states that peace “is the fruit of ideas and decisions taken in the political, cultural, social, military, and legal sectors of life.” It correctly recognizes that conscientious choices are not made by individuals in a moral vacuum, but by “citizens [who] wish to affirm [their] loyalty to [their] country and its ideas” and who must also remain both “faithful to the universal principles proclaimed by the Church” and sensitive to the needs of the world as a whole.

Since the giving of the law on Mount Sinai more than three thousand years ago, a distinct legal system has governed the Jewish people. One of the areas included in Jewish law is domestic relations. As a result, when an American Jewish couple marries in a Jewish ceremony two distinct legal systems recognize the marriage: American civil law and Jewish law. If the marital relationship breaks down and one or both parties want a divorce American law requires that the moving party brings an action in a court of law. Assuming proper grounds exist, the court will order a divorce and American law will consider the marriage terminated. Jewish law, however, will consider the parties still married until such time as distinct Jewish legal procedures are performed. Jewish law requires that the husband give his wife a bill of divorcement, known as a get. If the husband refuses to give his wife a get, she cannot remarry in accordance with Jewish law. Such a woman, in Jewish terminology, is an Agunah, a chained woman.

With the increase of divorces in American Jewish society has come an increased number of Agunot. A further result has been legal activity, in courts and at least one legislature, to encourage or even force a recalcitrant husband to give his wife a get.

From the landing of the seventeenth century Pilgrims, who wanted to establish in the colony of Massachusetts Bay a commonwealth that was distinctive precisely because of its fidelity to biblical commands, down to the present moment in American politics, when the Rev. Jesse Jackson continues to organize a “rainbow coalition” by the use of biblical rhetoric and when the Rev. Pat Robertson is considering a run for the Presidency to reassert the need for “biblical values” in America, the Bible has been inextricably interwoven into the fabric of American life, including the formation of American public policy.

In 1982, the centennial year of the Society for Biblical Literature, this reality was explored thoughtfully in series of essays that filled six volumes. More recently, Pastor Richard John Neuhaus has differentiated between the constitutional separation of the institutions of the state and the church and an extraconstitutional separation of religiously based morality from the realm of public policy choices.

The purpose of this survey is to note important caselaw developments in the state and lower federal courts concerning religious liberty. Purposely omitted are the widely reported United States Supreme Court opinions, as well as cases where the high court has granted review during its 1986-87 term. The focus here is to collect significant cases that may otherwise escape broad attention. Only the facts and rationale of each court's decision is recorded. No editorial comment on the merits of these cases is intended.

Minnesota v. Porter Farms, Inc., 382 N.W.2d 543 (Minn. Ct. App. Feb. 25, 1986).

A Minnesota appeals court has upheld an administrative law judge's ruling that an employee was unlawfully discharged because of his marital status. Randy Fitzloff brought suit under the Minnesota Human Rights Act, Minn. Stat. § 363.01 et seq., claiming that he was discharged from his employment as a farm laborer because he was living with a woman to whom he was not married. Suit was brought against Porter Farms and James Sorenson, who was found to be acting as its agent. Fitzloff, who was employed to help Sorenson with the operation of a farm, lived in a trailer near Sorenson's home. After discovering that Fitzloff was not married to the woman, Sorenson informed him that he was “living in sin” and would have to make a major decision within seven days and carry it out within two months. When again confronted, Fitzloff informed Sorenson that he would probably be getting married but not within two months. Sorenson then purportedly told FitzlofF “you're through.” Fitzloff interpreted the statement as meaning that he was fired and claimed that Sorenson's act constituted discrimination.

Professor Gaffney begins by positing an important if disputed principle of interpretation: that the circumstances of the production, publication and reception of any text, and therefore of a biblical legal text, form an essential element of its interpretation. It could be argued that only on this methodological basis is it possible to respect the distance between the past and the present, the world of the text and that of its interpreter. Where this principle is set aside, the way is clear for the interested appropriation of texts as authorization for positions on which the interpreter has already made up his mind—and nowhere more so than in the sphere of ethics.

The example offered is that of the death penalty for blasphemy in the Old Testament. In this instance it may seem altogether too obvious that the religious and cultural bases for this stipulation of law have altered, and that therefore, on any but the most doggedly literalistic reading, the Bible at this point provides no warranty for judicial policy. The matter is less obvious with the prohibition of killing in the decalogue with reference to the crucial issue of the death penalty. A formidable obstacle to arguing on this basis for the abolition of the death penalty is the exegetical fact that Israelite society sanctioned the death penalty and, in fact, had recourse to it more often than some other ancient Near Eastern societies (e.g., the Sumerians). I am not saying that there are no good arguments against capital punishment which draw on Jewish and Christian tradition, but we are warned against a simplistic and interested appropriation of isolated biblical texts in support of particular ethical constructions.

In his dramatic, if not mystical, account of the birth, growth, senescence, and death of American contract law, and of its ultimate dissolution into the law of tort, Grant Gilmore certainly did not intend to join forces with those who would later seize on his story as evidence that both contract and tort, and, indeed, law all together, are merely artificial devices to support a hierarchical and hegemonic political structure and to facilitate economic exploitation of the weak by the strong. Yet Gilmore's exposé of the logical circularities and fallacies of contract doctrine (especially as it is taught in first-year courses in American law schools) does add fuel to the already raging fires of skepticism—skepticism not only about the coherence of individual branches of the legal tree (contracts, torts, property, etc.) but also about the validity of doctrinal legal analysis and ultimately of law itself.

Arthur Corbin—Gilmore's mentor and the hero of his book—did not share that skepticism, although he strongly opposed the rigidities of the then prevailing contract doctrine, especially as represented in the teachings of his friend and rival, Samuel Williston. Unlike Williston, Corbin was prepared to give a contractual remedy for losses caused by reliance on a promise, and thus to bring contract and tort into a common focus. He was also more willing than Williston to expand concepts of fairness at the expense of strict liability for breach. Nevertheless, Corbin did not doubt, and surely did not seek to undermine, the coherence of contract law.

Contract law, pronounced dead within the last decade, has undergone a Lazarus-like resurrection. The revival of scholarship runs the gamut from Professor Charles Fried's writing asserting promise as “the moral basis of contract law,” through the Second Restatement of Contracts which concedes the legitimacy of more communal based doctrines such as promissory estoppel, to the writings of Professor Ian MacNeil who argues that community is “the fundamental root, the base” of contract and the even more collectivist writings of scholars in the Conference on Critical Legal Studies.

This revival of contract scholarship does not yet suggest any unifying theme, but it does, I think, indicate a vigorous search for some means of weaving together seemingly intractable concepts. This symposium on Law and Religion suggests an important area of search. That is, it invites us to examine the shared ethos of our culture.

I agree with Professor Berman's observation made elsewhere that law and religion are “two different but interrelated aspects … of social experience” and that one cannot flourish without the other. Because both law and religion are aspects of our social experience, one's view of God and the world must certainly affect one's view of the law. Similarly, one's view of the law probably affects how that person views God.

Sir William Blackstone's hyperbolic defense of the common law rights of Englishmen to private property, drawn from the immutable law of nature, was a comfort to conservative lawyers in the early American republic as a reasoned philosophical and legal defense of property against the uncertainties of John Locke's social contract. The seeds of Jacksonian democracy, in which popular sovereignty went hand-in-hand with the people's self-evident right to the pursuit of happiness, threatened to relativize and erode the social position of the propertied class. In this situation American lawyers vigorously asserted absolute rights to property that could transcend the vagaries of politics.

“The title of our lands,” wrote Jesse Root proudly in 1798, “is free, clear and absolute, and every proprietor of land is a prince in his own domains, and lord paramount of the fee.”