In his essay, Professor Bassett traces the roots of the “myth of the nomad,” a myth which was used to justify the dispossession and destruction of Native Americans by colonial settlers. Bassett's primary focus is on a careful exposition of the sources and uses of the myth. The historical evidence he presents is persuasive and interesting, and his analysis is often thought-provoking.

I find myself, however, in some disagreement with Bassett over the function this type of work serves. While Bassett recognizes that “[w]e are all creators of myths,” he insists that we should “bring to light” the myths in the law and expose their “insidious uses[s].” As Bassett observes, the first-year property course offers numerous opportunities for the unmasking of such myths. Bassett seems to suggest that we view his fascinating essay as one such attempt to “demythologize the law.”

It is not possible, nor would it be desirable, to “demythologize” the law. The law is constructed upon, and often even constituted by, myths. The effort to eliminate those myths would produce legal concepts that were far less human, and probably no more humane. Our task, as both teachers and scholars, should be to recognize and evaluate the myths we use, but not necessarily to abandon them. Bassett's essay offers a fine beginning for this project of understanding.

The question of the relationship between law and religion, especially as to the influence of the norms of one on the other, is highly problematic, or so it is as to the relationship between Jewish law and the common law of the United States. Despite a great deal of research on the subject, the claimed connections and influences strike me as exaggerated, in excess of what actually has been or can be proven. There appears to be an enthusiasm for finding connections, for what Professor Menacham Elon of Hebrew University in Jerusalem has called the “adoption of an apologetic approach” in which influence is over-emphasized. After all, such influences are difficult to prove, to trace, if for no other reason than explicit attribution to antecedents is rare. Much of the work in this area, at least as it bears on Jewish common law, rests largely on claims of a remarkable similarity between the respective norms of the systems of law.

One needs only observe that similar institutions and rules may have developed, not so much due to reciprocal influences, but because of similar circumstances in the respective histories of each system or similar if not identical predicate values and presumptions, be they divinely revealed or rationally derived. Counter examples exist, however, and in the area of torts and Jewish law, the most notable would be Jacob Finkelstein's essay on “The Goring Ox,” in which a direct connection is demonstrated between the biblical text pertaining to the required killing of the goring ox and deodandum decedens in English law.

Professor Kader has entitled his piece “Torts and Torah” presumably seeing his objective as defining the way the Torah (Jewish Law) responds to or deals with the reality of torts. I have entitled my response “Torah and Torts” since, as I shall show, the jurisprudential principles and constructs of Jewish law pervade all areas of the law and the response of Jewish law to issues of tort liability flows from the basic premises and approach manifest throughout the Jewish legal system.

But first, I wish to comment on some specific points in Professor Kader's essay. I would disagree with his assignment of expertise in Jewish law almost exclusively to the beneficiaries of an orthodox education. I could cite numerous examples to the contrary and could even attempt a cogent case for the notion that creative scholarship in Jewish law might require freedom from some of the presuppositions that are the hallmark of an orthodox approach.

Secondly, in citing the Biblical sources for the major categories of torts, he cites Exodus 21:28-32 although his quotation only goes through v. 29. In addition, that citation only refers to the goring ox that killed a human being. More pertinent to the issue of tort damage is the passage in Exodus 21:35-36 dealing with damage by the ox to another animal, from which is derived the principle (referred to by Professor Kader) of palga nizka or the half-damages liability of the owner of the goring ox which had not previously exhibited vicious behavior.

When I began telling my colleagues at Notre Dame that I had been invited to prepare a paper on religion and procedure, some of them said “How interesting,” and looked vague. Others, more forthright, came straight out and asked what on earth I was going to say. The reaction is understandable. Since God made everything, there is nothing that cannot be related to religion if you work at it, but procedure seems to be harder going than most things. It is all very well to talk about God ruling the world and the state exercising authority on His behalf. But God does not seem to have any procedure. It is fairly easy, if you go in for analogies of that kind, to think of God as a lawgiver, even as a judge. But to think of Him as a sheriff or a process server stretches most people's imaginations farther than they will comfortably stretch.

Professor Rodes invites us to a fresh view of the role of procedure in God's purpose. He reveals procedure as being itself a creation of God and a way for us to try to do God's business without being God. Through these insights procedure becomes more than merely a time-consuming buffer between people and justice. Professor Rodes shows us the potential of procedure as a means for us to emulate the qualities of God in our legal relations with others.

These insights are indeed welcome. They not only give us a great appreciation of the value of procedure, but also give us a metaphor by which we may call procedure to account and judge whether it fulfills its purposes. As Professor Rodes warns us, procedure separated from the purposes of God can easily be seen as a god itself, invoking our worship rather than our reformation.

Nonetheless, some, including myself, will find it hard to respond fully to Professor Rodes' invitation to take the theological considerations and relate them to our personal practice of our profession. The problem is not with the insights, but with the practice.

Like ourselves, people in the medieval world took law seriously. They had great law schools such as Bologna where professors expounded the Roman law of Justinian's corpus iuris civilis. They regarded the rule of law as a model for the social order. They explained their political disputes in terms of constitutional questions and their personal quarrels in terms of rights violated. Without this heritage the modern world would be inconceivably different.

They, however, lived in an Age of Faith while we live in a secular society. Surely, one would think, they must have conceived of law quite differently than we do. It would be illuminating to travel back in time and speak with a medieval jurist.

I have tried to imagine what that experience would be like. What follows is a report of a conversation between a modern student of law and legal history and a 14th century Bolognese law professor. My rule in constructing it was to allow my medieval jurist to stray as little as possible from opinions that prominent men of his age actually did express. His views on law reflect those of Bartolus and Baldus who wrote in his own century. His views on theology reflect those of Thomas Aquinas who wrote in the century before and with whose works Bartolus, Baldus and other 14th century jurists were familiar.

The purpose of this survey is to note important caselaw developments in the state and lower federal courts concerning religious liberty during 1985. Purposely omitted are the widely reported United State Supreme Court opinions, as well as cases where the high court has granted review during its 1985-86 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.