Digitized by the Internet Archive 
 in 2022 with funding from 
 Duke University Libraries 
 
 https://archive.org/details/calledbystories01 ball 
 
Milner S. Ball 
 
 CALLED 
 BY STORIES 
 Biblical Sagas and Their 
 
 Challenge for Law 
 
 Duke University Press Durham & London 
 
© 2000 Duke University Press 
 
 All rights reserved 
 
 Printed in the United States of America 
 
 on acid-free paper 
 
 Designed by C. H. Westmoreland 
 
 Typeset in Monotype Fournier 
 
 by Tseng Information Systems, Inc. 
 
 Library of Congress Cataloging-in-Publication 
 Data appear on the last printed page 
 
 of this book. 
 
For June once more 
 And now for Connell, Katie, Hannah, 
 
 and Marika too 
 

 
Contents 
 
 Prologue 1 
 
 I Moses 
 
 Law and the “Mouth” for God 9 
 Intercession 18 
 
 Counsel for the Situation 22 
 The Word in Moses’ Situation 27 
 The Risks 31 
 
 The Promise of Succession 38 
 The Promise of Justice 41 
 
 Psalm 114 42 
 
 II The Encompassing Women 
 
 The Midwives 51 
 Socratic Midwifery That Isn’t 58 
 
 . Socratic Midwifery That Is 61 
 
 Are You the Lawyers? 65 
 
 . Miriam 74 
 
 Rachel 77 
 
 . Jeremiah’s Rachel Poem 79 
 . Lawand Tears 83 
 . The Womb of God and Tears 99 
 
 III The Gospel According to John 
 
 . The Jerusalem Trial 109 
 
 . The Gospel Trial: A Divine Lawsuit 115 
 
 . A Reversal and Appeal 120 
 
 . The Power of the Word: Two Women 123 
 
 . The Power of the Word: Moses and the Spirit 125 
 . The Power of the Word: Disbelief 129 
 
 . John’s Freedom from and for Law 134 
 
 . Lawyers’ Independence 137 
 
 Epilogue 146 
 
 Acknowledgments 151 
 Appendix 153 
 
 Notes 187 
 
 Index 265 
 
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Prologue 
 
 These pages offer both a reading of biblical stories, primarily the Moses 
 saga and the Gospel of John, and an exploration of their critical inter- 
 sections with law and the practice of law. The texts are exotic and often 
 provocative, and their story-worlds compose a challenge to the power 
 structures of other worlds, including the world of law in which I earn 
 my living." 
 
 As I read Moses, he is God’s mouth. The fact that God tries to kill him 
 is a measure of the difficulty both of the story and of representing God. 
 Sometimes Moses also represents the people to or against God. He thus 
 speaks for both sides, a form of advocacy generally forbidden to Ameri- 
 can lawyers, who are instructed to represent only one side and to do so 
 zealously. Moses’ double voice raises questions about both his office and 
 the modern, ambiguous practice of lawyering to a situation. 
 
 The saga artfully associates Moses with a pair of Hebrew midwives in 
 Egypt. They are defiant and deeply engaged in the lives of their clients. 
 Their story calls attention to the role of women and leads to an explo- 
 ration of the nature of midwifery as it may be translated into modern 
 law — into the challenge of midwific teaching and practice. 
 
 Another richly complex story, that of Rachel, takes me to tears be- 
 fore the law. Rachel’s weeping for her children surpasses the advocacy 
 of Moses and raises questions about the law’s capacity to accommodate 
 things too deep for words. I follow these questions into a lawyer’s labor 
 among women in east Tennessee and Mexico, to the work of a tribunal 
 among Hawaiians, and to powerful tears of supplication. 
 
 The last story I take up is The Gospel According to John. Remark- 
 ably, John makes extensive use of the language of litigation and, more 
 remarkably, puts law on trial. The outcome of its simultaneously talk- 
 ing law and trying law yields the possibility that lawyers are most justly 
 captivated by law when they are most free to be in but not of it. This 
 possibility and its promise for the independence of lawyers is radically 
 different from the bar’s promotion of professionalism and of full devo- 
 tion to the legal system. 
 
 I did not write this book to engage in provocation and controversy 
 with either lawyers or biblical scholars, but I accept the fact that dis- 
 pute with both may be an unavoidable consequence of my work. And 
 
although I cannot predestine the direction of disagreement, I can help 
 focus it by giving brief accounts of the guiding images of the book, of 
 the narrative mode of reflection I pose, and of how these stories came 
 to have authority for me. 
 
 As I realized in retrospect, the stories themselves provided an image 
 that was my primary guide in writing. The image is familiar in the bib- 
 lical texts, and Isaiah gives it particular, poetic expression: “For as the 
 rain and the snow come down from heaven, and return not there but 
 water the earth, / making it bring forth and sprout, giving seed to the 
 sower and bread to the eater, / so shall my word be that goes forth from 
 my mouth; it shall not return to me empty, / but it shall accomplish 
 that which I purpose, and prosper in the thing for which I sent it” (Isa. 
 5§:10—-I1). 
 
 This image of the word going forth and fruitfully returning takes nar- 
 rative form in other biblical texts: God sends out a person or a people 
 with the promise of a productive return. Abraham, for example, is sent 
 from Haran with the promise that he shall be made “a great nation” 
 in which “all the families of the earth shall be blessed” (Gen. 12:2-3). 
 In the stories that figure in these pages, Moses is sent to Egypt with 
 the words that will return him to Mt. Sinai with the liberated Israelites; 
 Israel is then sent from Sinai with the words of the law to prosper in 
 the promised land; and John the Baptist is “sent from God” with words 
 of testimony so that, in return, “all might believe through him” (John 
 1:6-7). 
 
 One image entailed another. A person who is sent — messenger, rep- 
 resentative, ambassador, outlaw—will be an outsider along the way, 
 always passing through. The people in these stories, caught up in the 
 going forth and returning of the word, are sojourners. They are distinc- 
 tive because they do not travel alone. They are at the same time alien 
 and embraced as they make their journeys through first one wilderness 
 and then another. They are distinctive, too, because, although they pass 
 through, they do not pass by. As they wander, they remain deeply en- 
 gaged in the life that lies close at hand. The image of this company of 
 the word — apart together, in transit and involved —also proved to be 
 for me a guide in writing. 
 
 In addition to supplying these images, the stories also suggested an ap- 
 proach: Let the narrative carry the argument. 
 
 2 PROLOGUE 
 
To make the most of storytelling, as I try to do, is a common, useful 
 habit of mind and is companion to the work of others.’ Even so, al- 
 though lawyers tell stories all the time, we have been unable to recover 
 fully from thinking that law is a science. We are still hobbled by a reluc- 
 tance to make full use of stories as a mode of critical reflection. 
 
 System and theory are important and necessary, but narrative has the 
 advantage of apperception. In one of his typically intricate sentences, 
 my teacher Paul Lehmann described apperception as “the uniquely 
 human capacity to know something without knowing how one has 
 come to know it, and to bring what one knows in this way to what one 
 knows in other ways, and in so doing, to discern what is humanly true 
 or false.” * His description works best as a performance of its subject. 
 He wagered that readers would have had some experience of appercep- 
 tion and would therefore be able to catch his meaning without knowing 
 exactly how or what. 
 
 My concern just now is with the knowing-without-knowing-how 
 that, together with other ways of knowing, issues in true discernment. 
 In my own experience, this knowing-without-knowing-how is nur- 
 tured by love, ritual, theater, art, music, poetry, and not least by stories. 
 
 Arthur Danto notes that one cannot become, for example, a temper- 
 ate person by doing things from a list of things temperate people do. 
 “Having the list is inconsistent with being that sort of person.” * He says 
 that what it takes instead is intuition and the ability to judge and act ap- 
 propriately in situations not encountered before.’ Rather than self-help 
 lists — say something like the seven habits of seven successful people — 
 Danto concludes that we require examples “to direct the development 
 of judgment, which is to carry its possessor through unstructured moral 
 and legal spaces. ‘Examples are thus the go-cart of the understanding’ ” 
 (quoting Kant).° 
 
 I put the matter somewhat differently. In place of “intuition” and 
 “examples,” I would say that “apperception” is what it takes and that 
 “stories” are the go-carts. But the aspiration is the same. I, too, would 
 have understanding, the development of judgment, and the enliven- 
 ing of imagination —the things that carry us through the unstructured 
 places of the world and the heart. 
 
 That is why this book is driven by narrative and why, in consequence, 
 it could not assume the form of systematic treatise or social-scientific 
 analysis. I have depended upon stories. And their image of the word 
 in circulation—sent and flourishing in return—led me on a recursive 
 
 PROLOGUE 3 
 
course that sometimes critically intersected paths of the law and the 
 teaching and practice of law. 
 
 As the book proceeds, when the “real” world of the stories intersects 
 the “real” world of law, I interrupt the narrative to explore the inter- 
 section. Legitimate objections can certainly be raised to the fruits of 
 these interrupting performances. The fruits are important to me, but my 
 greater investment is in the underlying mode of reflection that produces 
 them. 
 
 What cuts against the grain of established ways of thinking about 
 what lawyers do is my attempt to give priority to the biblical stories in 
 particular. I have tried not to bring questions to them in search of an- 
 swers. I have tried instead to allow them to discover to me what the 
 questions and needs are. What I most hope to engage readers in con- 
 versation about is our attending these and other stories and the stories’ 
 inhabiting our thinking, writing, and acting. 
 
 Why these stories? The biblical sagas are not the only fundamental, 
 constituting stories that have worked their way into my life, but I have 
 been particularly seized by them. I am no systematic theologian or 
 apologist, but I am an ordained minister of the Presbyterian Church as 
 well as a lawyer and teacher of law. For almost three decades, I have 
 made my living exclusively from secular law because, although my ordi- 
 nation has never been revoked, compensated labor in the denomina- 
 tional institutions has not been an option for me. 
 
 Under sponsorship of the denomination, I became the Presbyterian 
 campus minister at the University of Georgia in Athens in 1966. Athens 
 was caught up in the turbulence of the ’6os: racism, Vietnam, misogyny, 
 confusion of mind. By the time I arrived, the chaplaincy had already 
 suffered a high incidence of vocational mortality, as was to be expected 
 in any position in which people attempted to make responsible sense of 
 the biblical tradition, for themselves as well as others, in the midst of 
 social and political upheaval. 
 
 The turning point in my own demise was 1968, that generally fate- 
 ful year. The Presbyterian Student Center, as had been true since the 
 integration of the university in the early ’60s, welcomed black students, 
 and it became a regular gathering place for all kinds of students, includ- 
 ing but by no means restricted to some who were thought to be leftist 
 radicals because of their youthful commitment to justice. I was thought 
 to be harboring enemies of the people. And then, too, I had taken part 
 in some local demonstrations and had attended the 1968 Democratic 
 
 4 PROLOGUE 
 
National Convention in Chicago as part of the delegation that success- 
 fully challenged the seating of the regulars elected by the state party. 
 Some of the regulars were wealthy, prominent Presbyterians. 
 
 The center’s local board courageously supported my work, and I drew 
 strength from them. Elsewhere around the state, some of the “fathers 
 and brethren” of the denomination grew unhappy, bitterly so in some 
 cases. They did not read the biblical stories in the same way that I and 
 my board did. My days were numbered. The chair of the local board 
 was Lindsey Cowen, dean of the law school. He encouraged me to audit 
 some law courses, and I did so. The board and I held on for about a year, 
 but then the synod, the statewide governing body, fired me. I could find 
 no work in the denomination (generally known then as the Southern 
 Presbyterian Church before its merger with the larger national denomi- 
 nation). My wife was in graduate school. We had three small children 
 and no money. Thanks to family and substantial loans, I was able to take 
 up the study and practice of law officially and full time. (I continue to 
 perform the formal offices of a minister as occasion allows.) 
 
 I made no decision to abandon the biblical texts. I had never confused 
 them with the denominational power structure and had no reason to be 
 alienated from the former. Even so, my interest in them dissipated com- 
 pletely for a number of years. I was too delightfully enthralled by the 
 law. 
 
 Nor did I make a decision to return to the stories. Gradually and in- 
 creasingly, however, I found that the more I engaged in and thought 
 about law the more necessary it became to have recourse to their ca- 
 pacity for generating understanding and critique. Then—and this is 
 where I am now—I discovered that I had to start with the stories. They 
 impressed themselves upon me as compelling and normative. They 
 seized me. I have no better way to say it. The experience was not mysti- 
 cal. It was and is ordinary living, acting, thinking, writing, and reading. 
 
 In this, I speak only for myself. To say that the stories must have the 
 authority for others that they have for me would constitute a betrayal 
 of the texts and my experience of them. They do not authorize such an 
 assertion.’ 
 
 The biblical sagas are meant to be read and heard. Their first audience 
 is their first communities: Jews and Christians. But they have never been 
 limited to these communities and were not meant to be.* Like the texts, 
 I seek without presumption to be read by the other audiences as well as 
 by the first ones. 
 
 Readers will have their own approaches to these stories and others 
 
 PROLOGUE 5 
 
like them found to be fundamental and freeing. There is a common 
 enterprise here. Paul Lehmann taught me long ago that such stories 
 have always been the way “one generation tells another how the future 
 
 shapes the present out of the past.” ° 
 
 6 PROLOGUE 
 
Moses 
 

 
1. Law and the “Mouth” for God 
 
 When Turner Network Television produced its version of the story of 
 Moses and the Ten Commandments, it had to contend “not only with 
 what the text says but also with what modern audiences believe the text 
 says— impressions now as likely to be based on past films as on chil- 
 dren’s Bible stories or regular reading of the Bible.” ' Cecil B. DeMille’s 
 The Ten Commandments is one film—the film—that influences belief 
 about what the text says. It is a wonderfully bad movie and a send-up 
 of the text, but I find it hard to think about Moses without thinking 
 about Charlton Heston. The same was true for critics of Ben Kingsley’s 
 uncharismatic, self-doubting Moses in the TNT production; they inevi- 
 tably saw him as “anti-Heston.”” This is a kind of curse. 
 
 So I come to the text with Charlton Heston and now Ben Kingsley and 
 a collection of other images and information gathered from childhood 
 recollection, religious education, scholarship, and my own prior read- 
 ing. I come to the text thinking I know what it says. And I am surprised, 
 the more surprised the more deeply engaging the stories become. 
 
 The broad outline of the Moses saga is familiar enough and unchal- 
 lenging. It is basically what many of us remember: 
 
 In order to save her infant son, an Israelite mother places him in a bas- 
 ket among reeds. An Egyptian princess finds him there and will later 
 adopt him as her son. After the child grows up, he kills an Egyptian and 
 must flee to the land of Midian, where he marries Zipporah, daughter 
 of a Midian priest. For the time being, he becomes a shepherd. When 
 he leads his flock into the Sinai wilderness by a sacred mountain, God 
 speaks to him from a burning bush and tells him to return to Egypt to 
 deliver the Israelites from slavery. Moses confronts Pharaoh with the 
 demand to let the people go, and he calls down a series of plagues upon 
 the Egyptians. At last he guides the Israelites in an escape through the 
 sea to the sacred mountain where he receives the law from God. From 
 there Moses leads the people on their long journey north through the 
 desert to the land of Canaan, the promised land that he is allowed to see 
 but not enter. 
 
 This is the general, familiar outline. It is the details of the story that 
 make it strange, not what I, like many others, thought I knew. 
 
 Early in the text come bits and pieces—intimations—of the strik- 
 ingly unfamiliar. It is strange that God chooses as the leader of Israel 
 
an inarticulate, fugitive prince of Egypt. No less strangely, the book of 
 Exodus announces that “Amram married Jochebed his father’s sister and 
 she bore him Aaron and Moses” (6:20). This brief, matter-of-fact iden- 
 tification contains two violations of biblical rules of legitimacy: Aaron 
 and Moses are sons of a forbidden, incestuous union (Lev. 18:12);’ and, 
 although firstborn sons are the ones to be consecrated and to inherit the 
 father’s wealth (Exod. 13:1-16), God prefers Moses, who is second born. 
 
 And then there is the incredible moment near the beginning. Moses 
 had yielded to God’s commission and was returning to Egypt when “the 
 Lord met him and tried to kill him” (Exod. 4:24).* The text offers no 
 mitigating explanation and instead deepens the mystery. God let him 
 alone, it says, after Zipporah hastily circumcised their son and “touched 
 Moses’ feet” with the foreskin (Exod. 4:25). Moses is remarkably saved, 
 and not for the first time, by a woman. 
 
 These details charge the story, upset expectations, and invite the 
 reader to a closer look. They challenge beliefs about what the text says 
 and what it should say, and the challenge brings with it much difficulty 
 but also the promise of a journey. 
 
 The Moses of the biblical saga is a complex figure of many parts, but he 
 is foremost a person of the law.’ The text does not say that he is a law- 
 yer. It says that he is “mouth” (pe) for God, and the story furnishes 
 the notion with meaning.® Moses as mouth for God is the figure I follow 
 to the episodes at Sinai and to intersections with rules of common law 
 and lawyering to a situation. 
 
 When God calls to Moses from the burning bush, Moses is first humble: 
 “Who am I that I should go to Pharaoh?” (Exod. 3:11). Then he is uncer- 
 tainly inquiring: When the people of Israel ask who sent him, he wants 
 to know: “What shall I say to them?” (3:13). He is next shrewdly wary: 
 “Suppose they do not believe me or listen to my voice?” (4:1). Then he 
 is modest: “I am slow of speech and of tongue” (4:10). Finally, he is 
 simply reluctant: “O my Lord, please send someone else” (4:13). 
 
 God introduces the image of the mouth in response to Moses’ argu- 
 ment that he speaks poorly. God says: “I will be with your mouth and 
 teach you what to speak” (Exod. 4:12). The image returns at the con- 
 clusion of the exchange when Moses’ truculent self-effacement at last 
 
 > 6 
 
 makes God angry. Enough humility is enough. To Moses’ “send some- 
 one else,” God answers that He will send Aaron as a companion: “You 
 
 shall speak to [Aaron] and put the words in his mouth; and I will be with 
 
 I0 CALLED BY STORIES 
 
your mouth and with his mouth. . . . he shall serve as a mouth for you and 
 you shall serve as God for him” (4:15-16).’ Moses is to God as Aaron is 
 to Moses: “a mouth for.” ® 
 
 Not out of weakness or incapacity does God call Moses to be His 
 mouth. God speaks when, to whom, and through whom He wishes, in- 
 cluding, wonderfully, Balaam and Balaam’s ass (Num. 22-24). He does 
 not require empowerment by Moses. God summons a mouth for Him- 
 self because of who He is and how He acts and not because of some 
 external necessity. 
 
 God’s awful presence is consuming. There is danger in it for humans. 
 Come too close to God or in the wrong manner and you die.” For this 
 reason, in giving Himself to His people, God provides Israel with the 
 media, forms, being, and history that serve as the locus of His presence. 
 Insofar as Israel’s life is constituted by these gifts, they are not consumed 
 when He is near. 
 
 But Israel must be exact in observance. In preparation for their meet- 
 ing with God at Mt. Sinai, the people must consecrate and wash them- 
 selves, and in the event keep the proper distance with great care (Exod. 
 19:10—-15). God warns and twice repeats: “You shall set limits for the 
 people all around, saying ‘Be careful not to go up the mountain or touch 
 the edge of it. Any who touch the mountain shall be put to death’ ” 
 (Exod sig 312215244)? 
 
 The ranking, ritual, purification, structure, detail of tabernacle con- 
 struction—and law— must be precisely observed, for only so does Is- 
 rael move forward with the presence of God. The violent, destructive 
 potential continues. Unsurprisingly, Moses “did everything just as the 
 Lord had commanded him” (Exod. 40:16)."" And when he instructs the 
 people, he is careful to employ a kind of careful, practical teaching.” He 
 wants to make sure the people get it. 
 
 The first nine chapters of Leviticus portray the careful unfolding and 
 flawless observance of the commanded ritual. But then comes the for- 
 mal inauguration of the priesthood when Aaron’s two eldest sons inter- 
 rupt the flow. In an excess of zeal they make an offering of fire, an added 
 offering not prescribed by God. It is a terrible mistake. “The fire came 
 out from the presence of the Lord and consumed them” (Lev. 10:2). 
 
 To live with God’s presence Israel must keep to the order without sub- 
 traction or addition. Precisely observed, it makes them a people apart 
 but allows them to be animated by God. “You must therefore be careful 
 to do as the Lord your God has commanded you; you shall not turn to 
 the right or to the left. You must follow exactly the path that the Lord 
 
 LAW AND THE “MOUTH” FORGOD It 
 
your God has commanded you, so that you may live, and that it may 
 go well with you, and that you may live long in the land that you are to 
 possess” (Deut. 5:32-33).” 
 
 That God provides a mouth for Himself is the cardinal gift of enable- 
 ment to His people. He is characteristically present to them as word. 
 God talks. In the texts, He calls to Moses from the bush and later speaks 
 to him all the words of the law. His voice is to be obeyed (Exod. 19:5). 
 He creates by word. He speaks the world into being: “God said, ‘Let 
 there be light’; and there was light” (Gen. 1:3). The word of God can 
 be destructive and terrifying. When the people hear the sound of His 
 speaking at Sinai, they are afraid and tremble and stand at a distance. 
 They cannot withstand His words spoken directly to them. 
 
 God’s commission of Moses to be His mouth is an expression of His 
 courteous power. Through Moses He speaks, and the people do not die. 
 Through this mouth He is present to His people and does not consume 
 them.'* God speaks through Moses, and the people are able to bear the 
 word that will in turn sustain them in their journey to the promised land. 
 God’s distinctive power is expressed not so much in great and terrifying 
 noise as in His speech through this person to this people. 
 
 When Moses acts as mouth for God to Pharaoh, he speaks for the people 
 as well as God, and at least initially they accept his office and the words 
 he brings: “Aaron spoke all the words that the Lord had spoken to Moses, 
 and performed the signs in the sight of the people. The people believed; 
 and when they heard that the Lord had given heed to the Israelites and 
 that he had seen their misery, they bowed down and worshiped” (Exod. 
 4330-31). 
 
 This popular belief in God and its attendant support for Moses prove 
 to be fleeting. Moses’ first confrontation with Pharaoh ends in failure, 
 and afterward God does not visit a plague upon the Egyptians as He will 
 do later on similar occasions. This time it is Pharaoh rather than God 
 who speaks and acts. He demands more brick from the enslaved and 
 already overburdened people. In response, the people turn away from 
 Moses: “You have brought us into bad odor with Pharaoh and his offi- 
 cials, and have put a sword in their hand to kill us” (Exod. 5:21).’” They 
 “would not listen to Moses, because of their broken spirit and their cruel 
 slavery” (Exod. 6:9). 
 
 The people then drop out of the story as active participants until the 
 last of Moses’ confrontations with Pharaoh, when they receive God’s 
 
 I2 CALLED BY STORIES 
 
instruction in the Passover. At that time they once again bow down and 
 worship and do “just as the Lord had commanded Moses and Aaron” 
 (Exod. 12:28—29).'° 
 
 Even so, the Israelites do not solicit Moses to act as their spokesman. 
 When they arrive at Mt. Sinai to complete the first stage of their long 
 sojourn in the desert, they at last approach Moses to plead for his help, 
 but they do not propose that he speak for them. They ask that he speak 
 to them: “You speak to us, and we will listen; but do not let God speak 
 to us, or we will die” (Exod. 20:18—21).'” Moses is God’s mouth and not 
 theirs. 
 
 Sometimes, however, especially in the events surrounding the giving of 
 the law at Mt. Sinai, Moses does represent the people before God, and 
 he appears then to act as ¢heir mouth. 
 
 The particulars of the writing of the law may constitute such an occa- 
 sion. I think they do not, but the possibility rewards exploration. 
 
 According to both Exodus and Deuteronomy, God summons Moses 
 to the mountain, writes the commandments on two stone tablets, and 
 gives them to him. That the law is written is worthy of note. The act of 
 writing is first mentioned in the Bible in association with other impres- 
 sive events in Exodus 17. That chapter opens with an episode in which 
 Moses draws water from a rock by striking it with his staff. A clash of 
 arms with the Amalekites follows. On the day of battle, Moses surveys 
 the action from the top of a hill. Whenever he “held up his hand, Israel 
 prevailed; and whenever he lowered his hand, Amalek prevailed. But 
 Moses’ hands grew weary; so they took a stone and put it under him, 
 and he sat on it. Aaron and Hur held up his hands. . . . until the sun set. 
 And Joshua defeated Amalek” (Exod. 17:11-13). 
 
 At the conclusion of that long day, God commands Moses to write. 
 The command is brief: “Write this as a reminder in a book and recite 
 it in the hearing of Joshua: I will utterly blot out the remembrance of 
 Amalek from under heaven” (Exod. 17:14). It is a striking conundrum. 
 God directs Moses to memorialize in writing the erasure of Amalek. 
 But because Amalek is inscribed in the book, he whose remembrance is 
 utterly blotted out is nonetheless still with us millennia later. Thus does 
 the Bible’s first mention of writing perform its power. 
 
 The references to writing that follow in the story of the long jour- 
 ney are associated almost exclusively with writing law: the book of the 
 covenant, the tablets of stone at Mt. Sinai, the law written on plastered 
 
 LAW AND THE “MOUTH” FORGOD 1% 
 
stones set up at Mt. Ebal, and the written law deposited in the ark. Moses 
 does most of this writing."® 
 
 Moses erases what God writes. When he descends the mountain bear- 
 ing the two stone tablets and approaches the encampment, he sees the 
 people engaged in the idolatrous worship of a golden calf, and he 
 smashes the tablets. They will be replaced later by a second set of stone 
 tablets on which the commandments have been rewritten. Arthur Ja- 
 cobson focuses on this erasure and rewriting of the commandments in 
 an argument about the authenticity of law.'” He reads the Sinai events as 
 a kind of negotiation with God carried forward by Moses on behalf of 
 the people. This negotiation or participation, he believes, is what makes 
 the law legitimate and effective among the people. I think Jacobson is 
 wrong, but helpfully so.”° 
 
 The first time that God hands down the law, He speaks it with fright- 
 ening power and then gives Moses the two stones on which He has writ- 
 ten it. Clearly God does the writing. The scene is interrupted by the 
 people’s calf worship and Moses’ erasure of God’s handiwork. After the 
 people offer an atonement, a measure of peace is restored, and God has 
 Moses cut two more stone tablets and return with them to the mountain. 
 God restates the covenant, and then “the Lord said to Moses: “Write 
 these words; in accordance with these words I have made a covenant 
 with you and with Israel.’ He was there with the Lord forty days and 
 forty nights; he neither ate bread nor drank water. And he wrote on 
 the tablets the words of the covenant, the ten commandments” (Exod. 
 34:27-28). 
 
 Jacobson believes that the text is ambiguous and that it is not clear 
 whether the “he” who wrote the second edition is God or Moses.” I 
 think it is clear in the Exodus account that Moses did the writing, but I 
 accept Jacobson’s point about ambiguity on other grounds.” 
 
 Jacobson reads the ambiguity as signaling something about law: If 
 law is rules and God unilaterally hands them down, people have no 
 creative role to play. The law written by God on the stones will ap- 
 pear not as propositions for conversation but as rules that are a graven 
 image to be bowed down to like the golden calf. Moses must destroy 
 the first tablets to teach the people that these writings are not idols but 
 propositions that lead to further creative conversation with God. Moses 
 must then be included in writing the second set of tablets to demon- 
 strate the possibility of collaboration. Moses “will let the people read 
 
 14. CALLED BY STORIES 
 
the propositions only once they are written for a second time. . . . The 
 people will not regard the second writing, the rewriting of a writing 
 they saw Moses smash, as an idol. They will read the propositions, re- 
 write them in deeds, use them as further propositions in conversation 
 with Yahweh.” 
 
 I read the writing at Sinai differently. It is not negotiation but God’s 
 gift. God wrote the law the first time. Moses erased the writing because 
 he was furious with the people just as God was. Moses thereby deprived 
 the people of the writing that would have placed the gift of law liter- 
 ally in their midst. Without law, God cannot be present to them. When 
 God orders the people to set out from Sinai, He says He will not go with 
 them: “If for a single moment I should go up among you, I would con- 
 sume you” (Exod. 33:5). 
 
 It is when God eventually relents and agrees to go with the people 
 that He also agrees to a rewriting of the law to be placed in the ark. The 
 words of the law, the ark, God, and the people set out together for the 
 promised land. The law is the gift whereby God is present without de- 
 stroying the people. 
 
 Uncertainty about who did the writing on the second set of stones has 
 two functions. It serves first to certify and particularize Moses’ role. God 
 speaks, then writes the law. To be His mouth means doing both. Moses 
 is commissioned to write as well as speak for God. When he utters God’s 
 word, Moses’ speaking and writing are the same as God’s. 
 
 The other function of the uncertainty is to indicate how the gift is to 
 be received. That there is a second edition of the law exhibits the in- 
 exhaustibility of God’s commitment to his people, their defection not- 
 withstanding. That the law this time was or could have been written by 
 Moses shows what the people are to do with it. God gives His law into 
 the hands of Moses. Moses in turn delivers it to the people. And then the 
 people are themselves at last bidden to write, like Moses. They are to be 
 saturated with the words: “Keep these words that Iam commanding you 
 today in your heart. . . . Bind them as a sign on your hand, fix them as 
 an emblem on your forehead, and write them on the doorposts of your 
 house and on your gates” (Deut. 6:6—9). Israel carries the law about in 
 the ark, on their doorposts, on their bodies, in their hearts, in their lives. 
 So does God’s law become the people’s law, and so is reception of the 
 gift completed. 
 
 The engraved words cannot be mistaken for idols, not because they 
 are smashed by Moses, but because words are exactly what an idol does 
 
 LAW AND THE “MOUTH” FORGOD 15 
 
not offer.”* Idols do not speak or write. An idol cannot be the words or 
 the source of the words that allow God to be close to His people to lead 
 and not destroy them. 
 
 The words of the law are the people’s to do. They are to be engaged 
 and animated by them. The law is very much their law and their re- 
 sponsibility. This engagement of the people in the law is testimony to 
 the God who is a collaborator with His people. His law—written by 
 the people on their doorposts, on themselves, and in their lives—is the 
 word of God that will bring Israel home. 
 
 Jacobson draws another interesting conclusion from his reflection on 
 writing the law. He finds in the writing a useful warning to modern prac- 
 titioners of law: It is wrong to hold that rules of law are complete prior 
 to any application of them. He says that Mosaic law and now common 
 law hold that rules are not complete in this way. From the Mosaic per- 
 spective, as Jacobson reads Exodus, complete rules would be idols, and 
 to apply them to cases as if the rules were already formed would be 
 idolatry. According to what Jacobson proposes as the dynamic jurispru- 
 dence of Mosaic and common law, “rules rule” correctly “only when 
 persons struggle at every moment with them, use them in deeds to cre- 
 ate a record.” > What counts is the creation and re-creation of the rules 
 that is “at once the striving of persons . . . and a spur to action.” ** The 
 struggle, he says, is as difficult today as it was “for those first legal per- 
 sons in the wilderness, struggling to free themselves, body and soul, 
 from slavery.” *’ 
 
 I think that Jacobson is exactly right in this: Rules can be idols. They 
 become idols when they become a substitute for responsibility. A judge 
 or bureaucrat or lawyer who claims that he must obey a rule and that he 
 is powerless to do otherwise than to simply apply it thereby refuses to 
 take responsibility for the interpretation and judgment that are his. He 
 makes an idol of the rule. I do not disagree with Jacobson on the point. 
 Iam uncertain, however, that it can be grounded in this text in the way 
 he has sought to do. 
 
 As I read the Sinai episode, it leads in a somewhat different direction. 
 Those persons in the wilderness were struggling to free themselves, 
 body and soul, from slavery, and they continued to do so. But in order to 
 begin and to continue the struggle to free themselves, they had first to 
 be freed. As a matter of narrative sequence and as a matter of being, they 
 could only arrive at that point in their desert life after they had been lib- 
 erated from Egypt.” The priority of God’s gift of freedom is embodied 
 
 16 CALLED BY STORIES 
 
in the text when God’s gift of law begins with His statement: “I am the 
 Lord your God, who brought you out of the land of Egypt, out of the 
 house of slavery” (Exod. 20:2). Israel is freed for law. 
 
 Moreover, neither Moses nor the people create or re-create the Ten 
 Commandments. God gives the commandments as spoken words, then 
 as written words, then again as written words. They are not rules, com- 
 plete or incomplete, and they are not to be applied. The people are to 
 rewrite the law in their lives rather than apply it to cases. And they are 
 to do so because otherwise the people rather than the rules are incom- 
 plete. Absent the law and their doing it, absent their rewriting it all the 
 way down, absent their investment in it, absent their responsibility for 
 its lived interpretation and embodiment, they are not God’s people, and 
 He is not present in their midst. The law is the imperative transcription 
 of who this people is and is to become.” Such law is not to be applied 
 but lived, embodied, abided in, made one’s own. Israel struggled to be- 
 come what it had been freed by God to be. It is God, rather than rules, 
 who rules. 
 
 LAW AND THE “MOUTH” FOR GOD 17 
 
2. Intercession 
 
 The rewriting of the law at Mt. Sinai is not a negotiation in which Moses, 
 representing the people, wins for them a collaborative role. Moses sim- 
 ply acts as scribe, just as he is mouth for the God who has given the 
 people a collaborative role with the beginning of the story. 
 
 On occasion, however, especially in the Mt. Sinai episodes, Moses 
 does speak for the people. Openly and explicitly in the text he intercedes 
 with God on their behalf." He does so movingly and effectively. He per- 
 suades God to change His mind, and he saves the people from mighty 
 acts of divine retribution. These intercessions appear to be spontaneous 
 and to lack express authorization by either the people or God. They raise 
 the question: For whom does Moses then speak? The question admits 
 of no easy answer. 
 
 I do not number among the singular moments when Moses truly inter- 
 cedes for the people those instances of alarm, peevishness, and self- 
 pity — both personal and collective— when Moses simply reiterates his 
 and the people’s complaints. There are more than a few of these whining 
 times. They start in Egypt prior to the exodus, when Moses remonstrates 
 with God: “O Lord, why have you mistreated this people? Why did you 
 ever send me? Since I first came to Pharaoh to speak in your name, he 
 has mistreated this people, and you have done nothing at all to deliver 
 your people” (Exod. 5:22—23). 
 
 Similar instances occur later in the pre-Sinai wilderness” and then 
 with some frequency after the giving of the law. One grievance arises 
 from the bland, daily repetition of manna and nothing but manna in the 
 wilderness that revives thoughts of food in Egypt now remembered as 
 varied, abundant, and savory: “If only we had meat to eat! We remem- 
 ber the fish we used to eat in Egypt for nothing, the cucumbers, the mel- 
 ons, the leeks, the onions, and the garlic; but now our strength is dried 
 up, and there is nothing at all but this manna to look at” (Num. 11:4- 
 6). (The narrator slips in a remonstrative dissenting opinion: “the taste 
 of [manna] was like the taste of cakes baked with oil” [11:8] [But, oh, 
 the garlic].) Moses relays such grievances to God and adds his own.’ I 
 reckon these episodes as registrations of fright, of grumbling, or of self- 
 pity rather than as intercession. 
 
The tapestry of exchanges at Mt. Sinai presents three very different, 
 acute cases of genuine, affecting intercession.‘ I take these up now and 
 will return to them several times. 
 
 The first occurs just after God gives Moses the tablets of stone on 
 which He has inscribed the Ten Commandments. The narrative of 
 events taking place atop Mt. Sinai is interrupted by the story of the 
 idolatry taking place below. In Moses’ absence, the people have lapsed 
 into the worship of a golden calf. God tells Moses to go down at once. 
 God wishes to be left alone so that His “wrath may burn hot against 
 them” without intrusion (Exod. 32:10). Moses, disobedient, delays. In 
 that critical circumstance, before he will leave, he will first pause to ar- 
 gue. We now would see him as a lawyer appearing before a judge and 
 refusing to be overpowered by him: 
 
 “O Lord, why does your wrath burn hot against your people, whom 
 you brought out of the land of Egypt with great power and with a 
 mighty hand? Why should the Egyptians say, ‘It was with evil intent 
 that he brought them out to kill them in the mountains, and to consume 
 them from the face of the earth’? Turn from your fierce wrath; change 
 your mind and do not bring disaster on your people. Remember Abra- 
 ham, Isaac, and Israel, your servants, how you swore to them by your 
 own self, saying to them, ‘I will multiply your descendants like the stars 
 of heaven, and all this land that I have promised I will give to your de- 
 scendants, and they shall inherit it forever’ ” (Exod. 32:11-13).’ 
 
 In response to these arguments that Moses makes from reputation 
 and covenant, “the Lord changed his mind about the disaster that he 
 planned to bring on his people” (Exod. 32:14).° Only then does Moses 
 descend the mountain to contend with the idolators. 
 
 The second intercessory moment in the Sinai sequence soon follows. 
 As Moses approaches the encampment and sees Israel enthralled by the 
 golden calf, he smashes the two tablets of stone bearing the Ten Com- 
 mandments. He then destroys the golden calf and conducts a purge of 
 the sinners. He still fears what God will do to the people who remain. He 
 returns to the mountain to “make atonement” for them (Exod. 32:30). 
 Instead of offering arguments this time, he employs a different tactic of 
 a type employed by modern lawyers: He confesses the people’s guilt and 
 enters a plea for mercy. He is partially successful. God agrees to let the 
 people continue on their journey to the promised land, but He also vows 
 to punish the guilty “when the day comes.” In the meantime He sends a 
 plague upon them. When the day does come, all the pioneers must die in 
 
 INTERCESSION 19 
 
the desert short of the promised land (Exod. 32:31-35).’ Only the next 
 generation will be allowed to enter. 
 
 The third of Moses’ Sinai intercessions occurs when God orders the 
 people to set out for the promised land but, apparently still nursing His 
 fury, says He will send an angel before them but will not Himself go 
 with them. His absence would clearly be a catastrophe. Without Him, 
 Israel would be defenseless against her enemies in the desert. Moses ap- 
 peals to God. The place of encounter has shifted from the mountain top 
 to a special tent, the tent of meeting, pitched outside the base camp. A 
 pillar of cloud there has replaced the thunderstorms on the mountain, 
 and the turbulence of Israel’s idolatry has given way to calm: “When 
 Moses entered the tent, the pillar of cloud would descend . . . and the 
 Lord would speak with Moses. . . . Thus the Lord used to speak to Moses 
 face to face, as one speaks to a friend” (Exod. 33:9, 11). In this setting 
 Moses now addresses to God a quietly personal, yet cunning argument 
 that touches on his relationship to God, on God’s prior statements, and 
 again on God’s reputation: 
 
 See, you have said to me, “Bring up this people”; but you have not 
 let me know whom you will send with me. Yet you have said, “I know 
 you by name, and you have also found favor in my sight.” Now if I 
 have found favor in your sight, show me your ways, so that I may know 
 you and find favor in your sight. Consider too that this nation is your 
 people.” (Exod. 33:12-13) 
 
 God is persuaded and interrupts to say so. He says that His presence 
 will be in attendance on the journey after all.* But Moses, like a lawyer 
 who would rather argue than succeed, seems not to hear and continues: 
 “How shall it be known that I have found favor in your sight, I and your 
 people, unless you go with us? In this way, we shall be distinct, I and 
 your people, from every people on the face of the earth” (Exod. 33:16). 
 God consents once more.” 
 
 Moses will represent Israel before God on later occasions, but these 
 three, decisive instances more than justify Jeremiah’s memory of Moses 
 as one of Israel’s greatest intercessors.'® At Sinai a great divide opens 
 between God and the people. Moses is in the middle, and three times 
 this mouth for God must speak for the people to God." 
 
 When Moses stands there in the middle, representing God to the people 
 and the people to God, he acts as what modern lawyers call “counsel 
 for the situation.” Here the story intersects a legal-professional subject, 
 
 20 CALLED BY STORIES 
 
and I pause to explore it. In order to do so, I must give a brief account of 
 the history and significance of the relevant professional terms, and this 
 means momentarily shifting focus from the strange story to the differ- 
 ently strange discourse of lawyers. 
 
 Along the way so far I have said first that Moses could be seen as a 
 lawyer before a judge and then that he employed lawyerly tactics. These 
 casual remarks were simple associations of modern law with the story. 
 Subsequently, the discussion of Arthur Jacobson’s views on writing and 
 rewriting the law at Sinai constituted a more complex exchange be- 
 tween the story and modern law. Jacobson read the story very carefully 
 and attentively and found that it spoke to him about how to regard rules 
 of law. What he found advanced his understanding not only of Moses 
 but also of himself and his work. 
 
 The intersection that I am now set to explore holds promise for en- 
 riching understanding of both Moses and a controversial practice of 
 modern lawyers.” 
 
 At Sinai Moses is fully immersed in a situation at the same time that 
 he remains distinct. The saga will later give us women— Hebrew mid- 
 wives, Miriam, Rachel—who are also, in their own way, both fully en- 
 gaged and other. Still later The Gospel According to John will return us 
 to yet another, qualitatively different encounter with what it means to 
 be in but not of a world, including the world of law. 
 
 The Sinai episode raises the question of Moses’ relation to God and 
 the people and of lawyers’ relation to the clients they represent. It raises 
 for the first time the recurring question of a person’s independence from 
 and identity with those for whom she speaks. What is entailed in speak- 
 ing for God? What is entailed in lawyers’ speaking for people? I shall 
 return to these issues several times over. But in order to do so, I must 
 first turn from Moses and the story to Louis Brandeis and lawyers’ dis- 
 course. 
 
 INTERCESSION 21 
 
3. Counsel for the Situation 
 
 The notion of “counsel for the situation” is important in the practice 
 of American law because it runs counter to the dominant idea that a 
 lawyer in our adversarial system must always perform as a zealous advo- 
 cate for an individual client’s interests against all others. This domi- 
 nant approach is well justified. A person needs a lawyer whose compe- 
 tence, diligence, confidence, enthusiasm, and undivided loyalty she can 
 rely on. 
 
 Nevertheless, a lawyer’s scorched-earth advancement of an indivi- 
 dual client’s interest is not always the need. For example, a family may 
 want a single attorney to represent them as a whole for various reasons. 
 (John Frank said that nothing requires “each of the relatives of the de- 
 ceased to take different counsel to the funeral: if a half-dozen heirs were 
 required to pay a half-dozen counsel, they would indeed have addi- 
 tional grounds for grief.” ') Or a group of business people may seek a 
 lawyer to represent their joint interests as they undertake a common 
 enterprise. Or clients with a present or potential dispute may be deter- 
 mined to resolve their differences amicably and may turn to their attor- 
 ney for her professional service. 
 
 “Counsel for the situation” is a way of thinking about such instances. 
 In alliance with the idea that lawyers ought to serve the interests of the 
 people and not the interests of large corporations only, it is also a way of 
 introducing into a discussion of lawyers’ responsibility a possible obli- 
 gation to communities, to relationships, to the public good, to some- 
 thing in addition to an individual client’s interests.’ 
 
 Louis Brandeis invented the term “counsel for the situation” to de- 
 scribe some of his work.’ He also advocated the role of people’s law- 
 yer and was known for sometimes playing that role himself.* His heroic 
 image continues to inspire public interest lawyering.’ 
 
 Brandeis became an associate justice of the Supreme Court after sur- 
 viving opposition at contentious hearings on his nomination in 1916.° 
 Although the opposition to him by leaders of the bar may actually have 
 been prompted by the fact that he was “an intellectually powerful liberal 
 and a Jew,” its ostensible subject was his professional conduct.’ 
 
 The term “counsel for the situation” was introduced publicly during 
 the 1916 hearings, but the story of it begins with an episode that took 
 
place in 1907.* A tannery had accumulated large debts and could not 
 meet the payments when they fell due. An owner of the business, James 
 Lennox, together with one of his creditors and the creditor’s attorney, 
 sought Brandeis’s advice. (Brandeis’s firm represented one of the other 
 creditors.) In the course of the conference, Brandeis determined that 
 the tannery was insolvent and suggested that the assets be assigned to 
 his law partner as trustee for the benefit of creditors, in the hope of 
 saving the business from bankruptcy. Lennox adopted Brandeis’s sug- 
 gestion but did not understand that he was thereby gaining a trustee for 
 the firm’s property rather than a lawyer for himself. In the complexi- 
 ties that followed, bankruptcy became necessary, and Brandeis’s firm 
 represented the petitioning creditors in those proceedings. Lennox felt 
 betrayed and retained another Boston lawyer, Sherman Whipple, to in- 
 vestigate. 
 
 Whipple met with Brandeis and later recounted the meeting at the 
 1916 hearings. He remembered Brandeis saying, among other things: 
 
 “When a man is bankrupt and cannot pay his debts, . . . he finds himself 
 with a trust, imposed upon him by law, to see that all his property is dis- 
 tributed honestly and fairly and equitably among all his creditors, and 
 he has no further interest in the matter. Such was Mr. Lennox’s situa- 
 tion when he came to me, and he consulted me merely as the trustee 
 for his creditors, as to how best to discharge that trust, and I advised 
 him in that way. I did not intend to act personally for Mr. Lennox, nor 
 did I agree to.” “Yes,” I said, “but you advised him to make the assign- 
 ment. For whom were you counsel when you advised him to do that, if 
 not for the Lennoxes?” He said, “I should say that I was counsel for the 
 
 situation. . . . 1 was looking after the interests of everyone.” ” 
 
 In 1965 John Frank revisited the nomination hearings and Brandeis’s 
 action. He concluded that Brandeis had violated no standard of pro- 
 fessional ethics, but he agreed with Whipple’s criticism that Brandeis 
 should have made clearer to Lennox what he was proposing.'® Frank 
 also thought that counsel for the situation was a “misty phrase” and 
 “one of the most unfortunate . . . [Brandeis] ever casually uttered.” " 
 
 Despite its colorable, inauspicious origin, the notion has survived 
 doggedly and honorably. Reputable lawyers who were contemporaries 
 of Brandeis had done the same thing, and lawyers still do.’” In 1978, 
 Geoffrey Hazard commended the practice as “perhaps the best service 
 a lawyer can render to anyone.” Hazard argued that lawyering for the 
 
 COUNSEL FOR THE SITUATION 23 
 
situation could be officially defined and should be officially recognized. 
 At the time Hazard wrote, the American Bar Association offered little 
 guidance on the subject. 
 
 The aBa adopted its first set of standards, the Canons of Professional 
 Ethics, at just about the time of Brandeis’s involvement with Lennox 
 and the tannery. Of these thirty-two aspirational canons, one held that it 
 was “unprofessional to represent conflicting interests, except by express 
 consent of all concerned given after a full disclosure of the facts.” '* Be- 
 yond this, the canons did not address what Brandeis and others were 
 doing in situational representation. 
 
 In 1969 the aBA adopted a Model Code of Professional Responsi- 
 bility that offered something more. According to one of its “disciplinary 
 rules,” lawyers may represent multiple clients if they provide full disclo- 
 sure and “can adequately represent the interests of each.” ° One of the 
 accompanying “ethical considerations” also provided that lawyers may 
 serve as arbitrators or mediators for clients.'® This is more than what the 
 earlier canons had offered, but it was not much clearer or more help- 
 ful.'’ Hazard said that it allowed “only a fragment of [lawyering for the 
 situation], and with some reluctance at that.” * 
 
 Hazard became the reporter for the next installment, the 1983 Model 
 Rules of Professional Conduct produced by an aBA commission. His in- 
 fluence is to be detected in Rule 2.2, which allows a lawyer to “act as 
 intermediary between clients.” '’ Thomas Shaffer believes that the rule 
 is stingy and not as generous as Brandeis would have wanted, but useful 
 nonetheless. In his judgment it bears possibilities for understanding that 
 lawyers may represent families and other communities and in doing so 
 represent the harmonies of the relationships.” 
 
 Meanwhile, a committee of the American Law Institute, which Haz- 
 ard now directs, has been at work on a Restatement of the Law Govern- 
 ing Lawyers. The 1996 final draft of the Restatement abandons the mod- 
 est effort of Rule 2.2 on the grounds that the rule did not mean what it 
 seemed to say and that, in any event, the term “intermediation” had not 
 entered the professional vocabulary." And a commission appointed by 
 the ABA to review the Model Rules agrees: It proposes eliminating Rule 
 2.2, replacing “intermediation” with “joint representation,” and view- 
 ing the latter as a problem to be dealt with under the rules governing 
 conflict of interest.”” 
 
 At present, lawyering for the situation stands just about where the 
 1969 Model Code left it: without much positive guidance.” It remains 
 
 what Hazard described as “marginally illicit professional conduct,” * 
 
 24 CALLED BY STORIES 
 
much as it was when Brandeis engaged in it at the beginning of the 
 century. 
 
 Lawyers do serve as counsel for the situation and will continue to do 
 so, even though the practice is probably destined to remain marginally 
 illicit.” This is as it should be. A rule legitimating the practice, if the bar 
 were to achieve a consensus, would nonetheless be a rule, and no rule 
 can carry a lawyer through the unstructured spaces of the situations at 
 issue.”° 
 
 Brandeis intended no evil. He sought only to maintain his own au- 
 tonomy,” but that desire may have compromised his representation. 
 In a careful reassessment of Brandeis’s practice, Clyde Spillenger finds 
 that autonomy and high-mindedness were specifically characteristic of 
 Brandeis’s lawyering for a situation. Brandeis typically sought to be fair 
 to all and to harmonize competing interests. Also typically, however, 
 the fairness and harmony he sought were not what a sensitive inquiry 
 into the goals and needs of the parties revealed. Rather, he “saw a ‘situa- 
 tion’ that he could solve, in the manner of a good Progressive problem- 
 solver—a “one-man New Deal’ —and he sought to impose a solution 
 that made reference less to the expressed desires of the parties involved 
 than to a vision nurtured by and known only to himself.” 7° 
 
 Lawyering for the situation is a tricky business, trickiest of all, per- 
 haps, for those who, like the heroic Brandeis, intend to do good by en- 
 gaging in it.”” Because he represented a detached vision of his own, 
 Brandeis was above the situation and not in it. His vision could be a 
 good vision with good intentions and good results. It was nonetheless 
 his own. 
 
 The aBa’s 1983 Model Rule 2.2 that allows attorneys to act as inter- 
 mediaries—the official version of lawyering to a situation—supports 
 such Brandeisian detachment. It expresses some concern for the extra 
 tisks to which clients are exposed in these circumstances. The interpre- 
 tive comments that follow the rule thus direct the lawyer to be mindful 
 of additional costs, embarrassment, and recrimination that failure could 
 produce for clients.’ But the lawyer is not thought of as having any- 
 thing at stake. The rules say nothing about her venturing herself. Or her 
 fee. Were the attorney to take the job and in the process foresee trouble, 
 she would simply withdraw, apparently with her fee and her reputation 
 for independence intact. The implied ideal is that of an attorney, like 
 Brandeis, above the situation, detached from the clients and the joint 
 enterprise.” 
 
 COUNSEL FOR THE SITUATION 25 
 
Back in 1978, Geoffrey Hazard had a view that conflicts with the aBa’s 
 notion of a lawyer detached from the situation. An attorney may be en- 
 trusted with the role of intermediary, Hazard said, “only if he knows 
 that in the event of miscarriage he will have no protection from the law” 
 and only if success prevents his performance from being questioned 
 afterward.” I read Hazard’s admonition to mean that an attorney may 
 be entrusted with the role only if he is fully, vulnerably invested in the 
 situation — like Moses. 
 
 26 CALLED BY STORIES 
 
4. The Word in Moses’ Situation 
 
 Moses never surrenders his office as mouth for God. He is as aligned 
 with God as a mortal can be. And yet he is also aligned with the people 
 and speaks for them.’ When he stands at the outermost reaches—the 
 text gives a geographical location on the mountaintop surrounded by a 
 cloud —he is physically separated from the people but not humanly de- 
 tached from them. His identification with them takes poignant form in 
 the narrative. 
 
 Just when God finishes speaking the law to Moses and gives him the 
 stone tablets, the people’s idolatry interrupts. In His fury, God would be 
 let alone “so that my wrath may burn hot against them and I may con- 
 sume them.” But that is not all that God says. He has a last comment. 
 He will consume the people, “and of you,” He adds, speaking to Moses, 
 “T will make a great nation” (Exod. 32:10). 
 
 Moses lingers. His response is to say nothing about the offer of a king- 
 dom of his own. He pleads instead for the people, for the nation that 
 is his now, such as it is. This is the first of his great intercessions on 
 the people’s behalf, and it changes God’s mind. Arthur Jacobson notes 
 about the moment that “the highest political drama. . . is whether Moses 
 will become a new Pharaoh.” * He does not.’ 
 
 When Moses returns to the mountain to make atonement for the 
 people’s sin and to intercede powerfully for them the second time, he 
 says: “Alas, this people has sinned a great sin; they have made for them- 
 selves gods of gold. But now, if you will only forgive their sin —but if 
 not, blot me out of the book that you have written” (Exod. 32:31-32)." 
 
 This is not simply to resist the offer to become a new pharaoh. Moses 
 now places himself fully with the people. God has written a book. If God 
 is to destroy the people, Moses asks to be erased from the book. Earlier 
 God had determined to erase the memory of Amalek, but, since Moses 
 wrote down God’s intention in his book, Amalek is still remembered. 
 Now Moses would have himself erased from God’s book. No longer to 
 be written in God’s book is more than to have resisted the pharaonic 
 temptation and worse than to be unremembered. It is not to have existed 
 at all. Moses risks all that he has and is. He is as fully the mouth for the 
 people as he is mouth for God. 
 
Moses’ advocacy in this situation poses a difficulty of interpretation. Is 
 he to be read as both mouth for God and voice of the people? If so, does 
 he slip from one role into another? Is he duplicitous? 
 
 The problem can be resolved by saying simply that Moses speaks for 
 the situation. Along this line it can be noted that he identifies with and 
 pleads for “this” people, not “these” people, and therefore for the col- 
 lective, for the enterprise, for both God and people together. Or it can be 
 argued that acting as an intermediary sometimes requires representing 
 one party to another or changing roles within a developing situation. 
 
 This reading solves the problem of double voice, but only by raising 
 it to a higher level. Moses still acts as God’s mouth, but now God is two: 
 God Forgiving and God Angry. Moses speaks for the people and God 
 Forgiving to God Angry.’ In the stories, God certainly acts as first the 
 one and then the other. And Moses’ intercessions succeed in convincing 
 God to change from one to the other. God does respond to intercession 
 on the people’s behalf. 
 
 This is a valid reading. I take a somewhat different approach. I think 
 that Moses’ intercessions at Sinai are genuinely intercessory, are prayers 
 to God for the people, because they arise out of the word of God: Moses 
 is mouth for the people exactly because he is mouth for God. 
 
 There is in the saga no ear for God. The people need an intermediary to 
 be able to hear God’s voice. God hears theirs unaided.® This is how he 
 comes to send Moses. “The Israelites groaned under their slavery, and 
 cried out. Out of the slavery their cry for help rose up to God” (Exod. 
 2:23). He hears and responds because of what he had earlier said,’ the 
 promises he made in electing Israel as his people: “God heard their 
 groaning, and God remembered his covenant with Abraham, Isaac, and 
 Jacob” (Exod. 2:24). Because He hears, He sends Moses to speak: “I 
 have heard their cry . .. , and I have come down to deliver them. . . . So 
 come, I will send you to Pharaoh to bring my people, the Israelites, out 
 of Egypt” (Exod. 3:7—10). 
 
 Entailed in God’s speaking is a return hearing and in the hearing a 
 return speaking. In Isaiah’s figure of the ongoing hydrologic cycle, the 
 rain and the snow come down and do not return empty. 
 
 At the beginning, at the burning bush, Moses objects: “I have never 
 been eloquent,” and God answers: “Who gives speech to mortals? . . . 
 Go and I will be with your mouth and teach you what you are to speak” 
 (Exod. 4:10-12). God supplies Moses with the words he speaks to Pha- 
 
 28 CALLED BY STORIES 
 
raoh and to the people. He also supplies Moses with the words Moses 
 speaks to God. God’s word returns to Him as intercession. 
 
 Moses’ first intercession at Sinai is a precise example. He has made 
 several round-trips to the mountain summit. As chapter 32 opens, the 
 reader assumes that Moses has returned to the top for the last time. 
 There is the expectation that the vertical movement of ascending and 
 descending will now translate into horizontal progress across the desert 
 plain and that the energy of exchanges between summit and base will 
 now fuel the long march forward to Canaan. 
 
 Already from prior exchanges, law has come down the mountain in 
 oral form and been agreed to and set out in writing (Exod. 19:3—8, 24:1— 
 8). Already there has been promise that, with this law in their midst 
 and with the doing it, the people will be led by an angel and that terror, 
 confusion, and pestilence will precede them to cut a path of destruction 
 through their enemies (23:23-33). 
 
 It remains only for Moses to descend with the two tablets of stone and 
 to deposit them in the mobile ark. Then, with the production of the re- 
 quired equipment completed, Israel will be set in motion once more. At 
 the end of chapter 31 Moses has the law stones in hand and is ready to de- 
 scend. That is just about where chapter 34 later picks up the story, with 
 God parading his glory before Moses on the mountaintop in rehearsal 
 of the passage God will make in company with the people below (Exod. 
 33:17-23, 34:6-7).* Then the two stones make their final descent safely, 
 all the way down. And when at last they are placed in the ark (40:20), 
 the people embark, charged by their law and the presence of God. 
 
 The story has moved from the revolt in Egypt, to the liberation of the 
 people in the exodus, to the founding of the nation’s freedom at Sinai. 
 And it is in process of turning north to complete the trajectory when 
 chapter 32 intervenes.” The forward movement is brought to a sharp and 
 unanticipated halt, and its continuation is thrown into radical doubt. 
 
 The story precipitously takes us to the edge of the abyss. Just as the 
 sin of Adam and Eve interrupts the idyll of Eden, so here the idolatry 
 of Israel halts the turn toward home and calls everything into question. 
 The people have abandoned their being. How could Israel do this thing? 
 How could Aaron conduct this act? How could he declare it to be “a fes- 
 tival to the Lord” (Exod. 32:5)? This cannot be. It is impossible. But it 
 is done. And what must follow but that the people and the journey must 
 end? Have already ended in an impossible act of self-destruction? And 
 
 THE WORD IN MOSES’ SITUATION 29 
 
the story, if it, too, is not to end, will surely have to take up with some 
 other people. 
 
 God’s speaking in chapter 31 concludes in the two stone texts. Moses 
 stands there, clutching them, when, in chapter 32, God’s fury breaks 
 out. Facing God, Moses intercedes for Israel. And his final, intercessory 
 argument in this scene, the one that changes God’s mind, is the express 
 return of words God had sent earlier: “Remember Abraham, Isaac, and 
 Israel . . . how you swore to them by your own self, saying to them, ‘I 
 will multiply your descendants like the stars of heaven. .. .. And then 
 the Lord changed his mind. . .. Then Moses turned and went down from 
 the mountain, carrying the two tablets of stone” (Exod. 32:13-15)."° 
 
 God’s word sends Moses to Egypt and returns him fruitfully to Sinai 
 with the gathered Israel. It brings him to the mountain summit, where 
 he will receive more words and where he may now intercede for the 
 people. And as he speaks, the word assembles around itself the vari- 
 ous arguments he offers. And then— simply, decisively —it emerges ex- 
 pressly: Moses quotes God to God to produce a reversal in judgment." 
 And the quoted words provide, as well, an interval for further interces- 
 sions. And the further intercessions allow the law stones to reach the 
 people. And these words, too, will have issue. 
 
 God is the origin and end of speech. The word goes forth in many semi- 
 nal forms: creation, promise, judgment, prophecy, and law. And it re- 
 turns in many fruitful forms of production and delivery: creation, child- 
 bearing, a people, exodus, journey, conquest, exile, return from exile, 
 poetry, and intercession. 
 
 As mouth for God, Moses speaks the word that does not return empty 
 but accomplishes its purpose and prospers in the thing for which it is 
 sent.'” Law and intercession are moments in this cycle. 
 
 30 CALLED BY STORIES 
 
5. The Risks 
 
 Participation in this cycle of the word leaves all parties vulnerable, in 
 unresolved complexities and tensions. Moses and Israel are not inert 
 conduits of the word, and God’s presence never loses its capacity to de- 
 stroy. God, Moses, and Israel are mutually imperiled. 
 
 God is vulnerable in His commitment to Israel, in His word in their 
 midst. The recent writings of the systematic theologian Robert Jenson 
 and the biblical theologian Walter Brueggemann provide a helpful point 
 of departure for exploring the subject. 
 
 The Greeks, Jenson notes, assumed that gods to be gods must be im- 
 mune “to time’s contingencies and particularly to death.” ' The Olym- 
 pian gods are immortal. In the biblical sagas, Israel begins with no such 
 assumption. Unlike the gods of Olympus, the God of the biblical sagas is 
 vulnerable to time. He is said to be eternal, Jenson argues, not “because 
 he lacks time, but because he takes time,” not because “he secures him- 
 self from time,” but because “he is faithful to his commitments within 
 time.” * In the stories, He is personally engaged: He changes His mind, 
 reacts to events, makes threats, and repents of them. That He listens and 
 responds to His people, “far from being a condescension, is the very 
 way he is faithful to himself.” ’ 
 
 Brueggemann points out that the people start with no generic as- 
 sumption about God at all.* From the beginning, what they know of 
 God is what God reveals to them about Himself in relation to them and 
 their history, along the way. “Even where God is said to be ‘elsewhere, ” 
 Brueggemann notes, “this ‘elsewhere’ is most often in response to Is- 
 rael’s life, either negatively or positively.” ° God is the God of Israel. He 
 is not detached. He is not “above the fray”; indeed, He is “at risk in the 
 ongoing life of Israel.” ° 
 
 Moses’ intercessions for Israel may then be understood to speak for 
 God because they are occasioned by and are occasion for God’s perfor- 
 mance of His faithfulness to Israel and therefore of His faithfulness to 
 Himself. Jenson draws on the rabbinic tradition: 
 
 The old rabbis, looking back on the whole of Israel’s Bible, could 
 state the matter in drastic fashion: “Israel [can even say] to God: “You 
 have redeemed yourself. . . ’ Wherever Israel was exiled, the Sheki- 
 
nah — if one may speak so— went with them into exile. ... And when at 
 the end of days they return, the Shekinah will return with them.” What 
 the Lord does to Israel, he does to himself, in that the Shekinah shares 
 Israel’s /ot and the Lord’s being. . . . With the phrase “the Shekinah” the 
 rabbis gathered a whole range of biblical discourse that speaks of God 
 
 as “settled” to and within Israel.’ 
 
 God and Israel share identity. In speaking for the one, Moses cannot 
 but speak for the other. 
 
 When Moses addresses God at Sinai—the word returning to its 
 speaker — his three intercessions are versions of a single theme: He ap- 
 peals to God to be God. This is also to ask that Israel be allowed to be 
 Israel. The one is linked to the other. 
 
 In the first scene, God sees Israel’s idolatry. Their worship of the calf is 
 an act of self-annihilation. God directs Moses to leave; He wishes to be 
 left alone so that He may consume the people and make another nation 
 of Moses. But this God, because He is God, cannot be left alone. Moses’ 
 argument is a reminder that Israel is the nation God has committed him- 
 self to (Exod. 32:7-14). Israel has done the impossible in its sin. God 
 must overcome the impossible with the possibility of a future, for He, 
 no less than Moses, cannot be Himself without Israel. He is the one who 
 is faithful over and against Israel’s faithlessness. He cannot be left alone, 
 and He cannot be left not alone but with another nation. 
 
 In the second scene, Moses acknowledges Israel’s sin and then says: 
 “If you will only forgive their sin—but if not, blot me out of the book 
 that you have written” (Exod. 32:32). Moses places himself fully at risk 
 with Israel. His doing so reminds God that God, too, is at risk with 
 Israel. What book would there be without Moses? What God would 
 there be without the book with Moses? God is the God of this nation in 
 this book. 
 
 The third intercession is offered in the tent of meeting. In the course 
 of it, Moses reminds God “that this nation is your people.” If God is not 
 present with them as they move out for Canaan, Moses asks, “how shall 
 it be known that I have found favor in your sight, I and your people, un- 
 less you go with us? In this way, we shall be distinct, I and your people, 
 from every people on the face of the earth” (Exod. 33:13-16). Without 
 God, Israel could not be known as God’s people. Without this distinc- 
 tion, with only the mass of humanity, God could not be known as the 
 God of Israel. What would distinguish Him? 
 
 32 CALLED BY STORIES 
 
God shares identity with Israel. But, as Jenson says, God is identi- 
 fied with Israel without ceasing to stand over against her.* God is both 
 settled in Israel and other than Israel.” 
 
 Like God for whom he speaks, Moses is fully invested in the people, 
 prepared to be erased with them, and yet, like God, he, too, is other 
 than they. He is Israel’s leader, but he is nonetheless a fugitive Egyptian 
 prince. He bears God’s word of judgment upon the people. And in the 
 course of the journey through the desert, his brother and sister lead a 
 revolt against him."° 
 
 Like Israel, for whom he also speaks, Moses is fully identified with 
 God and is yet other than God. God chooses the second born Moses to 
 be primary among His firstborn, instructs him in what he is to say to 
 Pharaoh, and then tries to kill him. Thanks to Zipporah, God lets him 
 alone. But what about the future? Where will Zipporah be? 
 
 The tension remains to the end, to the story about the conclusion of 
 Moses’ life on the verge of Israel’s entry into the promised land. Moses 
 begs God: “Let me cross over to see the good land beyond the Jordan, 
 that good hill country and the Lebanon” (Deut. 3:25). God rejects his 
 plea. At the end of the long journey from Egypt, God will not allow 
 Moses to enter. This is a painful lack of fulfillment for the conclusion 
 of a remarkable, deserving life. The confoundment of it lives on in the 
 stories and minds of the people. Moses’ exclusion is a punishment. He 
 committed an offense in the process of drawing water from a rock. 
 
 After the people leave Sinai, they arrive at Meribah (Quarrel). The 
 desert is bone dry. The people and their animals suffer. They have a des- 
 perate thirst. The people gather against Moses and Aaron and quarrel 
 with them about their predicament and no prospect of relief. The story 
 continues: 
 
 The Lord spoke to Moses, saying: “Take the staff, and assemble the con- 
 gregation ...and command the rock before their eyes to yield its water. 
 Thus you shall bring water out of the rock for them.” ... 
 
 So Moses took the staff from before the Lord, as he had commanded 
 him. Moses . . . gathered the assembly together before the rock, and he 
 said to them, “Listen, you rebels, shall we bring water for you out of this 
 rock?” Then Moses lifted up his hand and struck the rock twice with his 
 staff; water came out abundantly, and the congregation and their live- 
 stock drank. But the Lord said to Moses. . . , “Because you did not trust 
 
 RISKS 33 
 
in me, to show my holiness before the eyes of the Israelites, therefore 
 you shall not bring this assembly into the land that I have given them.” 
 (Num. 20:2~13) 
 
 There are various possibilities for identifying Moses’ offense." For 
 example: He was told to speak to the rock, but he struck it instead or 
 struck it too many times or too hard and thus evinced lack of trust in the 
 word. Or, when he asked the people “shall we bring forth water,” he was 
 taking credit for the miracle and thus succumbed to self-glorification, 
 perhaps a version of playing God. Or there is no precise explanation of 
 the details in the text. In any event, the text says he failed to show God’s 
 holiness.’ Like the rest of the first generation except Caleb and Joshua, 
 the generation of the pioneers, he, too, must die without crossing the 
 Jordan. 
 
 When the end comes, the text delivers it simply. Moses climbs to the 
 top of a mountain opposite Jericho, 
 
 and the Lord showed him the whole land: . . . “This is the land of which 
 I swore to Abraham, to Isaac, and to Jacob, saying, ‘I will give it to your 
 descendants’; I have let you see it with your eyes, but you shall not cross 
 over there.” Then Moses, the servant of the Lord, died there in the land 
 of Moab, at the Lord’s command. He was buried in a valley in the land 
 of Moab, opposite Beth-peor, but no one knows his burial place to this 
 day. Moses was one hundred twenty years old when he died; his sight 
 was unimpaired and his vigor had not abated. (Deut. 34:1-7) 
 
 Moses is left outside in an unknown grave. He was mouth for God, 
 but he was not God. 
 
 Israel is both bound to God and independent. “The Israelites wept for 
 Moses in the plains of Moab thirty days; then the period of mourning for 
 Moses was ended” (Deut. 34:8). After Moses dies, the people mourn. 
 And then they cease their mourning. They continue the journey. They, 
 God, the story, and the writer move on. The terms are the same: There 
 is assurance, but also the tension present from the start.’ 
 
 In their identity with God, they are a people apart from other people. 
 For Israel to bear the word through the desert and in the promised land, 
 they must be holy, and, as David Damrosch says, “to be holy, gadosh, is 
 to be set apart; the root means ‘separation, withdrawal, dedication... . 
 God himself repeatedly makes the point that the people’s separateness 
 is to mirror his own: Ye shall be holy, for I the Lord your God am holy’ 
 
 34 CALLED BY STORIES 
 
(Lev. 19:2).” '* Their separation requires certain political connections to 
 others: “You shall love the alien as yourself, for you were aliens in the 
 land of Egypt: I am the Lord your God” (Lev. 19:34). But these are con- 
 nections with other aliens formed in transit along the way. This people 
 are resident aliens in Egypt and then wandering aliens in the desert. 
 The closer to God Israel is, the more separate she is from other nations 
 and the closer to herself, to her true nature. God’s commands express 
 who Israel is, and obedience to them — her nearness to God — does not 
 then infringe on Israel’s autonomy but instead enables it.'? And espe- 
 cially as she approaches God in prayerful dependence —we see this with 
 Moses’ intercessions—the more independent she is. As Jenson says: 
 “Unabashed petitionary prayer is the one decisively appropriate crea- 
 turely act over against the true God.” '° 
 Israel can always act over against God inappropriately and abandon 
 her identity. So when wandering in the desert concludes in occupation 
 of Canaan, her presence in that promised land “expresses not a sense 
 of possession but a permanence of exile.” '’ The land was possessed by 
 others when Israel conquered it, and Israel, too, can be dispossessed in 
 turn. If the people are to continue in the land, they must obey the law. 
 “The ideology that contributes to a theology of the gift of the land,” 
 Patrick Miller observes, “can also be used against the people and made 
 the basis for their removal. . . . Deuteronomy, which builds upon the 
 ‘ promise of land to the ancestors, recognizes and affirms the tenuousness 
 of Israel’s life there.” '® 
 God’s settlement in Israel is unsettling and remains so. It unsettles 
 Israel in the story, and it unsettles interpretation of the story. In the bib- 
 lical saga, there will be no “after all is said and done.” There will be, as 
 Brueggemann puts it, “another speech, another challenge, another invi- 
 tation, another petition, another argument, which will re-open the mat- 
 ter.” God is both incommensurate with Israel and mutually engaged 
 with her. In Israel’s speech about God, the irresolution remains. “For 
 after Israel has given witness to the relatedness of [this God], one who 
 hears the testimony still wonders: What in fact is the nature of this re- 
 
 lationship?” *° 
 
 A lawyer who finds herself having to decide whether to act as counsel 
 for a situation will certainly want to make a careful, contextual analysis 
 of the particular components of the situation and their implications.” 
 She will want, too, to think carefully about what the rules of law and the 
 rules of professional conduct require. But she may also want to keep in 
 
 RISKS 35 
 
mind, along with other stories, the story of Moses at Sinai and what was 
 required of him. 
 
 Rigorous analysis of a situation’s texts and facts is necessary but will 
 only sometimes issue in an obvious course of action. A greater or lesser 
 leap of faith is necessary to a great many decisions that professionals 
 and nonprofessionals alike must make. Remembered stories do not of- 
 fer, as a substitute for the responsibility of judgment, a mechanical lit- 
 eralism of one-to-one correlations between story and present action.” 
 Stories nurture apperception and the discernment of guiding presences 
 between the lines of legal texts and between the facts of situations. 
 
 In the instance of whether to act as counsel for a situation, the story 
 of Moses at Sinai raises the possibility that the lawyer’s decision and 
 the situation have a larger context: “When your son asks you in time 
 to come, ‘What is the meaning of the testimonies and statutes and the 
 ordinances which the Lord our God has commanded you?’ then you 
 shall say to your son: “We were Pharaoh’s slaves in Egypt and the Lord 
 brought us out of Egypt with a mighty hand’ ” (Deut. 6:20-21). 
 
 Paul Lehmann taught that it is “the environment of decision, not the 
 rules of decision” that gives our acts their significance.”’ In the terms of 
 Moses’ saga, the environment is God’s active presence in the midst of 
 life in the delivery of Israel. No specific act of a lawyer (or any other) 
 can realize a principle or rule of liberation in a literal way, but it can be 
 a participatory sign of the environment of liberation in which it takes 
 place. 
 
 Remembering the story of Moses and how he was free to put himself 
 at risk, an attorney may choose to act as counsel for a situation. She will 
 remember to expect not that she will remain invulnerably safe or certain 
 but that she will be carried through this like other unstructured moral 
 and legal spaces. 
 
 A lawyer who acts as counsel in this way and discovers herself in 
 trouble with the bar or the law will also remember that both the bar and 
 the law are constructed and not given worlds. Walter Brueggemann ob- 
 serves that the biblical world is spoken into availability and that there 
 is, absent speech, no objectively given world that stands as a measure 
 of the reality of the biblical one.** There are many other spoken worlds. 
 Those among them that are regarded as something other than spoken, 
 regarded as perhaps necessary or natural, have only been “spoken so 
 long, so authoritatively, and so credibly that they appear to be given.” ” 
 
 The biblical texts debunk false appearances and false claims. They do 
 so not by counterclaiming that their world is more truly given or that 
 
 36 CALLED BY STORIES 
 
their story is The Story of Everything. They do so by engendering cri- 
 tique and liberation as it is the nature of the word of God in the biblical 
 story-world to do. That world serves “as a subversive protest and as an 
 alternative act of vision.” *° 
 
 The Moses saga is thoroughly and patently a world of words. Be- 
 yond its intersection with lawyering for a situation, it advances a more 
 general, curing challenge. The American legal system and its subsid- 
 iary institutions like the American Bar Association are worlds that have 
 been long, authoritatively, and credibly spoken. Against their settling 
 into the self-destructive attitudes and establishments of givenness, the 
 Moses saga projects an unsettling God, an unsettled people, and a 
 
 chosen, ravaged man of law. 
 
 RISKS 37 
 
6. The Promise of Succession 
 
 I have dwelt upon complexities, risks, and threats in the saga. There is 
 also great promise in it. 
 
 The death of Moses, like the attempt to kill him, is unfair to Moses. 
 It is also risky for God. God cannot be God without words and Israel, 
 and He cannot talk to Israel without a mouth. Therein lies promise for 
 the joint future of God and Israel: There will be successors to Moses. In 
 fact, a succession has already begun. In the story, it is set in motion in 
 the beginning in the person of Aaron. 
 
 I have looked through Aaron as though he were not in the text. But 
 he is there, importantly present. Moses suffers a speech impairment. In 
 order to speak for God, he must have another. God appoints Aaron. 
 Aaron is the first to share in the office of mouth for God. Moses’ limita- 
 tion makes the participation of another necessary and possible. 
 
 In quoting the story of Moses striking the rock at Meribah, I omitted 
 Aaron’s name. In fact, it is not Moses but his mouth Aaron who does 
 the talking at Meribah, as he usually does. (“Moses and Aaron gathered 
 the assembly together before the rock, and he said . . .”) Perhaps Aaron 
 fatefully includes himself in the overreaching. If he implies that he is a 
 mover as well as a mouth, he, too, is playing God, and Moses’ offense 
 is his as well. He had been, moreover, a leader of the idolatry at Sinai. 
 Whatever the explanation, he joins in Moses’ transgression.' He will not 
 cross the Jordan because, God says, he “rebelled against my command- 
 ment at the waters of Meribah” (Num. 20:24).” 
 
 Aaron climbs Mount Hor to die as God tells him to do. He is ac- 
 companied by his son Eleazar and Moses. At God’s command Moses 
 strips Aaron of his vestments and places them on Eleazar. After Aaron 
 dies, “Moses and Eleazar came down from the mountain” (Num. 20:28). 
 Moses’ office is first shared with Aaron and then devolves upon Eleazar. 
 The priesthood will continue. 
 
 And so will political-military leadership. At the end, Moses prays for 
 the appointment of “someone over the congregation who shall go out 
 before them and come in before them, who shall lead them out and bring 
 them in,” and Joshua is the answer (Num. 27:16—22, Deut. 34:9). Moses 
 lays his hands on Joshua, and, after Moses dies, Joshua leads the people 
 of Israel into the promised land (Joshua 1:1-11). 
 
And not only will there be priests and commanders; prophets, too, 
 will be sent. Moses promises: “God will raise up for you a prophet like 
 me” (Deut. 18:15).’ Moses’ death makes room for others and gives hope 
 for the future. 
 
 There is another, more delicately accomplished succession, that of the 
 writer. It can be detected in process at several points in Deuteronomy, 
 including a critical instance near the conclusion: “On that very day the 
 Lord addressed Moses as follows: ‘Ascend this mountain of the Abarim, 
 Mount Nebo, which is in the land of Moab . . . ; you shall die there. . . ; 
 because . . . you broke faith with me among the Israelites at the waters 
 of Meribah-kadesh . . . , by failing to maintain my holiness among the 
 Israelites’ ” (Deut. 32: 48—52).* 
 
 These are words of God, and Moses does not report them. The writer 
 offers them directly to the reader. At work here is what Robert Polzin 
 describes as “a subtle but effective strategy on the part of the Deutero- 
 nomist gradually to blur or soften the unique status of Moses at the 
 very same time that most of the . . . elements in the book explicitly en- 
 hance it.” ° 
 
 Deuteronomy is presented as an oration of Moses. In the course of 
 it, Moses quotes words God has spoken to him. However, toward the 
 end of the book, when Moses finishes speaking and writing, the narra- 
 tor continues on. As Polzin points out, the narrator—not now Moses— 
 five times reports God’s words directly.’ God’s account of Moses’ default 
 at Meribah is one of these occasions. The narrator quotes God simply, 
 without calling attention to the fact that he is suddenly doing so. With 
 no break in the narrative flow, he writes as one who, like Moses, has 
 been present, has heard God speak, and can now relate what God said. 
 He writes as though he is “a privileged observer and reporter of God’s 
 words, just as he describes Moses describing himself to be.” ” 
 
 Both by leading us to question the exceptional status of Moses and by 
 himself unobtrusively quoting God directly,* the narrator assumes some 
 of Moses’ role and little by little becomes, like his hero Moses, a mouth 
 for God. We are thereby readied to accept the legitimacy of the writ- 
 ings that follow, when this narrator and others and compilers of their 
 work begin to set forth the Deuteronomic history from Joshua through 
 2 Kings. The distinction between narrators’ words and those of Moses 
 becomes practically irrelevant.’ 
 
 This is an enactment on the page not of rebellion or self-aggran- 
 
 PROMISE OF SUCCESSION 39 
 
dizement or disparagement but of the gift of succession. There will be 
 priests, prophets, and political leaders—and tellers of their stories and 
 of the stories of others after them. In the continuation of the story, there 
 is assurance that God will have a people and that He will be present with 
 them in His word." 
 
 40 CALLED BY STORIES 
 
7. The Promise of Justice 
 
 The Moses saga seldom speaks expressly of justice. Its concern is with 
 holiness. Justice is to be understood as an expression of holiness. Jus- 
 tice is a precise, practical, active form of regard for those who are types 
 of fellow exiles and strangers along the way: “For the Lord your God 
 is God of gods and Lord of lords, the great God, mighty and awesome, 
 who is not partial and takes no bribe, who executes justice for the orphan 
 and the widow, and who loves the strangers, providing them food and 
 clothing. You shall also love the stranger, for you were strangers in the 
 land of Egypt” (Deut. 10:17-19). 
 
 God is and acts otherwise. He unaccountably chooses Israel as His 
 people. For Israel to be holy as He is holy, its politics must be constituted 
 by the justice that is love of fellow strangers, what Damrosch refers to 
 as “a fellowship of exile.” 
 
 Israel’s practice of this justice is to have future consequences that can 
 only be hinted at in the sagas. In one of the earliest stories, God com- 
 mands Abraham to leave his home and kin in Mesopotamia and head 
 south where He promises to make of him “a great nation” (Gen. 12:1- 
 2). God adds: “By you all the families of the earth shall bless themselves” 
 (Gen. 12:2—3). Abraham’s separation is to lead not only to the nation his 
 descendants will become but also to all nations “blessing themselves” 
 by him. From the start, Israel is set apart en route to a gathering blessing 
 for all? 
 
 Moses particularly embodies Israel’s holiness. The story leaves him in 
 an unknown grave outside the outsiders. He could not be left further 
 from a pharaonic kingdom. But neither could he be left closer to others 
 who find themselves aliens in a strange land. Or closer to the God whose 
 word draws them into a fellowship of exile. It is a just conclusion. 
 
8. Psalm 114 
 
 The Moses saga gives narrative expression to the image of the word 
 going forth and returning. But that image is also poetically elaborated 
 in texts within the saga and in texts related to it. Psalm 14 is a related 
 poem. I give it an extended, close reading in this last chapter of part 1. 
 
 The psalm is a poetic gem that uniquely illuminates the image of the 
 word in circulation. My reading of it is consistent with the way that I 
 read the stories and that I presumptuously, aspirationally align with the 
 work of interpreters like Phyllis Trible. In patiently exposing a biblical 
 text’s details—the density that warns against “easy historicism or. . . 
 facile theological extraction” — Trible allows it to yield “hints of its own 
 advocacy, even if it does so with reticence and delicacy.” ' 
 
 I try to follow her good example. In doing so, I also bear in mind 
 Walter Brueggemann’s admonishment that an interpreter should “not 
 be so protective of the text as to shrink from” its capacity to generate 
 theological extrapolation.’ I therefore undertake some of the same mod- 
 est extrapolation here that I have been venturing already in connection 
 with the stories. 
 
 The textual details of the poem matter and are helpful. Even so, read- 
 ers may elect to proceed directly to part 2, where I return to Moses. 
 Moses also figures in the psalm. 
 
 The Psalms are often the poetic, meditative representation of the heart 
 of biblical narratives. So is it with Psalm 114. Its corresponding stories 
 are from the exodus, the desert sojourn on the way north, and the entry 
 into the promised land: 
 
 1 When Israel went out from Egypt, 
 
 the house of Jacob from a people of strange language, 
 2 Judah became God’s sanctuary, 
 
 Israel his dominion. 
 
 3 The sea looked and fled; 
 Jordan turned back. 
 
 4 The mountains skipped like rams, 
 the hills like lambs. 
 
5 Why is it, O sea, that you flee? 
 O Jordan, that you turn back? 
 
 6 O mountains, that you skip like rams? 
 O hills, like lambs? 
 
 7 Tremble, O earth, at the presence of the Lord, 
 at the presence of the God of Jacob, 
 
 8 who turns the rock into a pool of water, 
 the flint into a spring of water. 
 
 In these brief lines and with a few lyric strokes, Psalm 114 first brings 
 to the mind’s eye a sweeping view from the exodus across the parted 
 waters of the sea to the entry into the promised land, when the Jor- 
 dan River halted to let the people cross,’ and then it renders the events 
 as forms of praise. The fleeing sea and leaping mountains in the poem 
 are the earth’s trembling recognition, its worship, of God present in His 
 people. 
 
 The poem gives pleasure and nourishment taken to heart just as it is. 
 But then, too, it yields fruitful meaning to those who come to it from dif- 
 ferent interpretive approaches and who explore its possibilities at differ- 
 ent levels of complexity. Biblical poetry is generally rewarding and wel- 
 coming in this generous, unprejudiced way. But there is added promise 
 in the details and in the working at them. 
 
 Psalm 114 exhibits what Robert Alter refers to as “the focussing dy- 
 namic of biblical poetry.” * Biblical poetry, he observes, tends “to move 
 from large to small, container to contained, outer to inner,” achieving 
 a heightened concentration,’ and that is what happens in Psalm 114. 
 It moves from cataclysmic political-natural events to a spring, from 
 earth-shaking to an immediate, inner moment. It glides down to a quiet 
 pool of water that invites meditation. The God before whom the earth 
 trembles is also the God who redeems his people and who preserves 
 them with a flowing spring in their hour of need.° 
 
 The chief dynamic of Hebrew poetry — well illustrated by Psalm 114 
 —is parallelism.’ One part of a verse is repeated in some form in the 
 next. No repetition is simply a repetition. Wo repetition is simply a repe- 
 tition. Repetition may serve multiple purposes; it may specify, elabo- 
 rate, intensify, or complicate and enrich. 
 
 In this poem’s first verse, “Israel” in one line is repeated or paralleled 
 as “the house of Jacob” in the next, and “Egypt” in the first line returns 
 
 PSALM I14 43 
 
as “a people of strange language” in the second. In verse 2, the parallel 
 to “Judah” is “Israel,” and “God’s sanctuary” becomes “his dominion.” 
 
 The parallelism performs significant work. Although house of Jacob 
 is a familiar way of saying Israel, a people of strange language is an un- 
 usual substitution for Egypt.* The parallel is meant to excite reflection, 
 and I shall return to it. Also intriguing is verse 2’s use of dominion as the 
 parallel for sanctuary. It makes clear that God’s holy presence occupies 
 a political entity. 
 
 All the remaining verses are also parallels. The sea in verse 3 is an- 
 swered by the Jordan River, and the mountains /rams in verse 4 become 
 hills /lambs. 
 
 The structure of Psalm 114 is another conventional device of Hebrew 
 poetry. It is a kind of structuring parallelism or mirroring (@ reversing 
 or crossing) called chiasm. An example of a single line following the 
 chiastic pattern abda is Ecclesiastes 7:1, translated as “A good name is 
 better than precious ointment.” In Hebrew it reads tov shem mi-shemen 
 tov. The whole of Psalm 114 forms an abéa chiasm in which the first four 
 verses are mirrored in the last four. The movement can be seen in this 
 way: 
 
 1. When Israel went out from Egypt, 7. Tremble, O earth, at the presence 
 
 the house of Jacob from a of the Lord, 
 people of strange language, at the presence of the God of Jacob, 
 2. Judah became God’s sanctuary, 8. who turns the rock into a pool of water, 
 Israel his dominion. the flint into a spring of water. 
 3. The sea looked and fled; 5. Why is it, O sea, that you flee? 
 Jordan turned back. O Jordan, that you turn back? 
 
 4. The mountains skipped like rams, 6. O mountains, that you skip like rams? 
 the hills like lambs. O hills, like lambs? 
 
 As the reader makes the turn after verse 4 and starts back up the page, 
 the tense changes from past to present,'° and the stanza formed by verses 
 3 and 4 is mirrored in the stanza formed by verses 5 and 6: the sea and 
 Jordan of verse 3 are repeated in verse 5, and the mountains/rams of 
 verse 4 are repeated in verse 6. 
 
 Verse 7 then gathers the sea and the Jordan River together with the 
 mountains and hills to become “the earth.” It also ties verses 1 and 2 
 to verses 3 to 6. Its emphasis on the presence of God completes under- 
 standing of the great political and natural events of Israel’s beginning 
 as functions of His power. Israel went out from Egypt and Judah be- 
 
 44 CALLED BY STORIES 
 
came God’s sanctuary because God was actively present, and the earth 
 trembled at these events because He was present in them. The earth is 
 in movement: the sea flees, the Jordan turns back, and the mountains 
 and hills skip. In the forms available to it— fleeing, turning back, skip- 
 ping —the earth makes response to God’s presence among His people. 
 Israel was brought from Egypt and into Canaan with acts of worship 
 brought from the earth." The historical and the theological, the natu- 
 ral and the political, the poetic and the liturgical, join at God’s active 
 presence in this people in this poem. 
 
 That brings us to verse 8: “Who turns the rock into a pool of water, / 
 the flint into a spring of water.” 
 
 Has the chiasm played out? What does verse 8 have to do with either 
 verse I or verse 2? Verses 1-7 lead us to understand that the presence 
 of God is politically-naturally-liturgically dynamic. His presence is to 
 be seen in the actions of the exodus and the entry into Canaan. Judah 
 became His sanctuary, and the earth responded astoundingly to His 
 presence. But what has that to do with any parallel to be discovered in 
 verse 8? 
 
 Verse 8 is loaded. Its references to rock and water correspond to the 
 sea and mountains of the earlier verses. However, in verses 3—6 the poet 
 speaks first of water and then of solid land, whereas in verse 8, rock pre- 
 cedes water. Verse 8 also reverses the action. In verses 3—6 water parts 
 to provide dry ground for the people to cross, but in verse 8 the dry 
 rock opens to provide water for the people to drink, and this reversal in 
 action turns the emotional focus from natural and political upheaval to 
 nurturing care.’ 
 
 More pointedly, verse 8 concludes the poem with the introduction of a 
 new narrative reference. Verse 7 has been a summary: the miracles at the 
 exodus and conquest were responses to the presence of God. But verse 8, 
 in the poem’s only identifying characterization of God, describes Him 
 as the one who turns rock to water. The poem’s narrative subject is 
 chiefly the exodus from Egypt but also the entry into Canaan — until the 
 last verse, when the reference shifts to another story. 
 
 I have already rehearsed the story of Moses striking the rock to make 
 water flow from it and his offending God in the process. That was the 
 Numbers version, and it is placed in the narrative after the people leave 
 Sinai. There is another version in Exodus placed before they arrive at 
 Sinai. The desert sands have left the people thirsty but yield no water. 
 Moses intercedes. God instructs him to strike a rock with his staff. Moses 
 
 PSALM II4 45 
 
does so, and water flows from the rock (Exod. 17:1-7). All is well. 
 Moses gives God no offense. The psalm does not mention Moses, but I 
 find it impossible to think of the story without thinking of him. I expect 
 the same was true of the poet and his audience. The allusion to the be- 
 nign version allows the reader to think well of Moses, free of praise or 
 blame. The shift to the story of the miracle is abrupt but almost unfelt 
 and unseen. 
 
 “Within a small compass,” Alter notes, “through the use of intricate 
 and closely clustered devices of linkage and repetition, [the Bible’s lyric 
 poetry] can create the illusion of simultaneity, offering to the mind’s 
 eye a single panorama with multiple elements held nicely together.” ” 
 Psalm 114 achieves such simultaneity. By ending with water from a rock 
 as a structural parallel to the exodus at its beginning, the psalm artfully 
 lays out the exodus, the conquest, and this episode so that the reader 
 then sees and accepts their linkage effortlessly: the presence of God 
 draws a response from the earth. 
 
 Alter observes how the license of another biblical poem reproduces 
 in its narrative sweep “a strong and recurrent rhythm of God’s action in 
 history.” '* It projects “out of the stunning experience at the Reed Sea [or 
 Red Sea] a larger pattern of God’s powerful — one might say ‘heroic’ — 
 acts in history.” '’ The narrative sweep of Psalm 114, too, projects this 
 larger pattern of God’s acts. As God brought Israel from Egypt and into 
 Canaan, so did He bring water from a rock in the desert. But Psalm 114 
 adds a small, quiet touch to its offering of the pattern of God’s acts. It 
 allows the reader to contemplate the nurturing provision of water as of 
 a piece with the heroic act of the exodus: The presence of God draws a 
 response from the earth to redeem and sustain His people. 
 
 The first verse uses the phrase “a people of strange language” as a paral- 
 lel to “Egypt” (“When Israel went out from Egypt, the house of Jacob 
 from a people of strange language”). Possibilities for interpreting this 
 parallel are opened by the same chiastic association of the first and last 
 verses that poetically connects water from a rock to the exodus. 
 
 The exodus is the template of God’s actions in the story. When Psalm 
 114 gently associates the miraculous provision of water in the desert 
 with the exodus pattern, it links turning the sea into dry ground with 
 turning rock to water: God redeems His people from Egypt in the exo- 
 dus / He redeems them from thirst in the desert; He brings Israel free- 
 
 46 CALLED BY STORIES 
 
dom from a people of strange language / He brings them water from a 
 rock. The relation is poetic. It is poetry. 
 
 Blues is often about singing the blues, country music is often about 
 singing country music, and the Psalms are often about psalmody. Psalm 
 114 is by inference, I think, such a psalm. The implied, mirrored con- 
 nection is that from a people of strange language went out a people 
 with language for psalms. And the narrative series becomes: Israel was 
 brought from Egypt; water was brought from rock; poetry is brought 
 from the prosaic. The suggestion is that God’s word not only moves the 
 sea to divide and the rock to open with water. It also moves the Psalmist 
 to sing. The reader is invited to receive the poem as a gift belonging to 
 the pattern of God’s acts. God frees His people. He also nourishes and 
 delights them — with poetry as well as with water. Psalm 114 celebrates 
 the presence of God in His word accomplishing freedom, sustenance, 
 and poetry. The earth trembles; the poet writes. The poet’s art is turned 
 to praise. 
 
 There is another element in the series. If you read the poem well and 
 it works, you cannot but understand that your interpretation is a gift. It 
 has happened not because you are such a smart and clever reader (“see 
 what a fine interpretation I have made”). It has happened because, just 
 as Israel was led from Egypt and just as water was drawn from a rock 
 and just as the poem was made to flow from the poet, so is interpretation 
 a miracle brought from the reader by the hand of God. The gift makes 
 the reader participant in the freeing, sustaining subject of the poem.’¢ 
 
 The connection between the three events—Israel going out from a 
 people of strange language, flint turning to a spring of water, and the 
 writer producing Psalms — highlights God’s mighty acts as natural and 
 political wonders performed on behalf of His people. He has been 
 powerfully present in His word, both freeing and sustaining His people. 
 
 The word does not come to a stop among the people. The dynamic 
 includes a return. Moses is mouth for God. The people, insofar as they 
 conform to the law, are a medium for His presence. They receive the 
 word, and they return it. Earlier, I noted that there is not an ear for 
 God equivalent to the mouth for God, and, following Isaiah’s image of 
 the hydrologic cycle, I suggested that the word’s fruitful return is im- 
 plicit in its utterance. When it is spoken, the word of God, the davar, 
 animates His people, gives them voice, accomplishes its purpose, and 
 returns to—is heard by —Him. 
 
 PSALM 114 47 
 
The law drops like rain not to return empty but to accomplish its pur- 
 pose and return in the form of ascription of greatness to God.'” One 
 form of return is the obedience of the people. Another is their praise. 
 The song of Moses in Exodus 15 after the victorious crossing of the Reed 
 Sea begins: 
 
 I will sing to the Lord, for he has triumphed gloriously; 
 horse and rider he has thrown into the sea. 
 
 The Lord is my strength and my might, 
 he has become my salvation; 
 
 this is my God, and I will praise him, 
 my father’s God, and I will exalt him. 
 
 God accomplishes the exodus, and his mighty act is forthwith turned 
 into art and returned to Him as praise. Psalm 114 brings to the mind’s 
 eye a sweeping view from the exodus to the conquest, and in doing so 
 it, too, renders the events as artful forms of praise. 
 
 Alter says: “Again and again in Psalms, man’s divine gift of articu- 
 lateness, his ability to confirm God’s majesty in song, is the culmina- 
 tion of the poem and of the whole order of creation. . .. God speaks the 
 world and man into being, and man answers by speaking songs unto the 
 Lord.” * 
 
 48 CALLED BY STORIES 
 
Il 
 
 The Encompassing Women 
 
 Moses is not the only one who lies in a lonely grave outside. In this he has 
 the company of Rachel. She, too, was buried along the way. Her story 
 will return me to the subject of intercession and exclusion. But not yet. 
 Rachel does not figure directly in the Moses saga. Other women do, and 
 they have their own contributions to make. They take me back to the 
 
 beginning of the saga. 
 
La 
 
 
 
9. The Midwives 
 
 Moses is the leading human figure in the exodus story, but narratively 
 and substantively, he follows women, including two midwives. The text 
 invites the reader to construe Moses in their image and therewith pro- 
 vides an additional way to think of him: Moses as midwife at the deliv- 
 ery of Israel. 
 
 The Book of Exodus opens in the comfortable, received manner with 
 no clue of the decisive role women will play: “These are the names of 
 the sons of Israel who came to Egypt with Jacob” (1:1). And it lists the 
 sons. No mothers. No daughters. And next it says: “The total number of 
 people born to Jacob was seventy” (1:5). And when the story then turns 
 to the Egyptians, this scene, too, opens with an all-male cast. Pharaoh 
 warns his people that the enslaved Israelites pose a threat to Egypt be- 
 cause they “are more numerous and powerful than we” (1:9).' He imag- 
 ines the possibility of war and of Hebrew defection to the enemy. To 
 lower the Israelites’ birthrate and to reduce the threat of revolt, Pha- 
 raoh’s people “set taskmasters over them to oppress them with forced 
 labor” (1:11). The slaves are made to build cities and to do “hard ser- 
 vice in mortar and brick and in every kind of field labor” (1:14). But the 
 more they are oppressed, the more they multiply and spread, “so that 
 the Egyptians came to dread the Israelites” (1:12). 
 
 Riding this Egyptian anxiety, women enter the text and set in motion 
 a politics of resistance.” When Pharaoh’s first policy fails to control the 
 growth of the Israelite population, he is driven to enlist the aid of mid- 
 wives, and abruptly the text produces two of them, Shiphrah and Puah: 
 “When you act as midwives to the Hebrew women, and see them on the 
 birthstool,” Pharaoh directs them, “if it is a boy, kill him; but if it is a 
 girl, she shall live” (1:16).’ 
 
 The midwives—they “feared God” —defy the order and lie when 
 Pharaoh confronts them. They say: “The Hebrew women are not like 
 the Egyptian women; for they are vigorous and give birth before the 
 midwife comes to them” (1:19). (The word for “vigorous” can be read 
 as “like wild beasts.”) 
 
 The slave mothers bear more babies, God rewards the midwives with 
 families of their own,‘ and the proliferation of children presses more 
 
heavily upon Pharaoh. He must venture a new policy. He revises his 
 command to the midwives and broadcasts it to “all his people, “Every 
 boy that is born to the Hebrews you shall throw into the Nile, but you 
 shall let every girl live’ ” (1:22). 
 
 This concise story of rebellious midwives, fecund mothers, and fear- 
 ful Egyptians swells with satire, irony, and suggestion. Driven to ex- 
 haustion, the Israelites nonetheless continue to copulate and to repro- 
 duce in the fertile valley of the Nile. The alien labor source that drives 
 Egyptian development achieves a critical mass that cannot be con- 
 trolled, so that Pharaoh’s fearful imagination propels him to ever more 
 extreme measures. The climactic madness is fixed in his order that the 
 Nile, the nation’s source of life, become the means for mass infanticide. 
 
 The story then shifts momentarily to a domestic scene and then 
 to quiet transactions among women. A Levite man marries a Levite 
 woman. She conceives and, presumably aided by the midwives, bears a 
 son. Against the fury of Pharaoh’s command, she hides her baby as long 
 as she can and, when she must, sets him in a basket among reeds at the 
 spot on the riverbank where Pharaoh’s daughter habitually bathes. The 
 baby’s elder sister keeps watch nearby. 
 
 Pharaoh’s daughter arrives, and the text works her seamlessly into the 
 female conspiracy. She takes pity on the crying infant, and, in defiance 
 of her father but in narrative alliance with the other women, she delivers 
 the baby from the river. Pharaoh’s daughter —even she —joins the re- 
 sistance of midwives and mothers. Naturally. How could she have done 
 otherwise? Would she wash herself in the river as the little corpses of 
 babies float by? Would she throw another in? What could Pharaoh have 
 been thinking? How ignorant could he be of women? What confusions 
 does he express by killing boys but letting girls go free? 
 
 Before God enters the story to harden Pharaoh’s heart, Pharaoh has 
 proved himself mad. His madness is not personal but political and sys- 
 temic, and it passes as a rational policy that proceeds in responsive, pro- 
 portional stages: First oppress the slaves, then enlist their midwives, 
 then, as necessary, make a posse comitatus of the whole. It is impos- 
 sible now to read the story without seeing in Pharaoh a prototype of 
 the modern politics of nationalism: enemies without, aliens within per- 
 ceived as enemies who must be destroyed, a rational construction of 
 national interest that is both destructive and self-destructive, and a final 
 spasm of powerlessness realized as a wholesale surrender to the use of 
 force. 
 
 Within the terms of the story, Pharaoh aligns himself and his na- 
 
 52 CALLED BY STORIES 
 
tion with oppression and death. The women align themselves with each 
 other, delivery, and life. The reader scarcely notices that the women 
 occupy the sane, steady center of the story by committing acts of rebel- 
 lion and deceit. 
 
 And when the story continues, it is generous with irony. At the 
 suggestion of the baby’s sister, the Egyptian princess pays the Hebrew 
 mother to nurse her own Hebrew son. After the child is reared into 
 young manhood, the princess adopts him into the royal house. Pharaoh, 
 even in his most manic dreams, could not have envisioned a Hebrew son 
 clasped to the bosom of his family. 
 
 The rich narrative play is not a virtuosic extravagance. It adorns the 
 women to highlight their shaping, sustaining presence. The story is in 
 the process of producing Moses. First it gives us midwives, a mother, a 
 sister, and a princess— women woven into a verbal womb around the 
 child. 
 
 There is some textual as well as nontextual evidence for supposing 
 that, like the princess, the midwives, too, are Egyptian.’ The possibility 
 is sufficient. That they could be either Egyptian or Hebrew is testimony 
 to a sympathetic company undeterred by ethnic, political, or religious 
 boundaries. There is loyalty within this company, but it is not loyalty 
 to the reigning power. None of the women acts deliberately to become 
 an outlaw. Each simply acts humanly. The text forms them protectively 
 around a male child to give him life and prominence in a male-domi- 
 nated world that would otherwise kill him. 
 
 Among these women, at this point in the story, the midwives draw at- 
 tention. The text cultivates an interpretive connection between them 
 and Moses by its deployment of names. After the opening list of Israel- 
 ites in Egypt, there is a considerable interval in the story when the only 
 names to appear are those of Shiphrah, Puah, and Moses. The text speaks 
 of Moses’ father, mother, and sister, but it does not identify them until 
 much later. All it says about his adoptive mother is that she is Pharaoh’s 
 daughter. Such silence is pregnant in a book that begins: “These are the 
 names...” And it brings to the fore the names that do appear. Shiphrah 
 and Puah are linked by emphasis with Moses. The reader wonders why, 
 and the word “Moses” helps supply an answer. 
 
 That name is a play on words. The Egyptian word mose means vari- 
 ously “to beget a child,” “to be born,” or “child,” and was employed as 
 an element in names, as in Thut-mose: “Thut is born” or “son Thut.” 
 Pharaoh’s daughter could easily have used mose in naming her adopted 
 
 MIDWIVES 53 
 
son, but she does not. Instead she chooses a Hebrew word. It is as close 
 in sound to the Egyptian as moses is to mose, but it has a very differ- 
 
 29 66 
 
 ent meaning. The Hebrew moshe means “to draw out.” “She named him 
 
 He Who Draws Out, ‘because,’ she said, ‘I drew him out of the water’ ” 
 (Exod. 2:10).° 
 
 This is a play on grammar as well as on words. The text gives us an 
 Egyptian princess who apparently speaks Hebrew, and the reader ex- 
 pects her to employ the passive voice to match her meaning. She should 
 name her adopted son “He Who Was Drawn Out” because she drew him 
 out of the water. Instead she uses the active voice and calls him “He 
 Who Draws Out.” 
 
 In this way the text invites the reader to understand that Moses’ de- 
 fining performance in the exodus will replicate his adoptive mother’s 
 action. He will do for others what she did for him. The Egyptian prin- 
 cess draws a Hebrew slave child from the river. That child, become an 
 Egyptian prince, will draw other Hebrew slaves through the sea to free- 
 dom. Gender and circumstance change, but the action remains the same. 
 Thus does the text by artful association lead the reader from Shiphrah 
 and Puah to the Egyptian princess to Moses. 
 
 Drorah O’Donnell Setel notes that the exodus event is “a dramatic 
 image of birth: the parting of the waters of the sea. As if to underline 
 this connection, the Hebrew word for Egypt . . . is also associated with 
 labor pains.” ’ Moses is on hand for the exodus, but Shiphrah and Puah 
 are the first to deliver children of Israel in defiance of Pharaoh. They 
 are the archetype, and they imprint the story. The origin of Israel is a 
 delivery, and Moses is the midwife. 
 
 When the Book of Exodus encourages the reader to associate Moses 
 with midwifery, it does so without devaluing the labor of women. This 
 is a creditable achievement, and its elements warrant notice. 
 
 At least as much as midwives now, the midwives of Egypt would have 
 been steeped in the reality of blood —the blood of life and the blood of 
 death. And they would have known from their own hands the lingering, 
 strong smell of it, and the joy and celebration as well as the suffering 
 and agony that accompanies it. 
 
 The text does not idly appropriate the images of mothers’ labor and 
 midwives’ work. The exodus event with which the text associates child- 
 birth is at the same time horrifically destructive and miraculously life- 
 
 giving. It is preceded by the terrible physical suffering of the Egyptians, 
 
 54 CALLED BY STORIES 
 
and in its accomplishment many die. Israel, too, suffers great trauma 
 before and as it emerges. When Moses successfully delivers Israel to 
 the far side of the sea, women sing with their first breath of freedom 
 and go out “with tambourines and with dancing” (15:20). The pain of 
 birth is done, and joy takes over. The frenzy of the celebration is left to 
 the reader’s imagination: powerful women in the desert, released from 
 the constraints of Egypt, smacking tambourines, an unearthly timbre in 
 their voices, their feet whirling sand into a storm. 
 
 Implicit in all this presentation of the exodus as parturition is the 
 text’s unsentimental respect for women and their labor. Such apprecia- 
 tive valuing of childbirth is not altogether singular. Other biblical texts 
 regard the obstetric metaphor as necessary to the poetic imagery for 
 God. Psalm 22:10—11, for example, addresses God as both midwife and 
 mother: “For you brought me forth from the womb, / made me safe 
 upon the breasts of my mother. / Upon you was I cast from the womb, / 
 from the womb of my mother, my God are you.” * 
 
 Moses as midwife is a reflection of God as midwife, and in the story of 
 the exodus, women’s work is placed at the center of imagery for God’s 
 action. A male sense of inside status is not restored when the story later 
 reserves it to priests to draw much animal blood in sacrifice and to splash 
 it on altars. The bellowing of the animals and the stench of their blood 
 on hot stones produces no life and is no compensatory substitute for 
 motherhood and midwifery. 
 
 The order of the sexes is not thereby reversed —a prejudice against 
 men substituted for a prejudice against women. The differentiation of 
 the sexes is transvalued. 
 
 I want to be as clear as Phyllis Trible in noting that the biblical employ- 
 ment of human sexuality in talking about God and His action in his- 
 tory is not a description of God in sexual terms but a statement of His 
 transcendence and, I would add, His politics, for the emancipating con- 
 spiracy that Shiphrah and Puah set in motion has its origin in the tran- 
 scendence of God (“They feared God”). Trible begins where the Bible 
 begins, with the first chapter of Genesis and the creation of humans 
 who, as male and female, are made in the image of God: “And created 
 God humankind in his image; / in the image of God created he him, / 
 male and female created he them” (Gen. 1:27). In this metaphor “male 
 and female” is the vehicle and “the image of God” is its tenor."® 
 
 With respect to God, the metaphor points toward His otherness. 
 
 MIDWIVES 55 
 
Trible notes that His image is “neither male nor female, nor a combi- 
 nation of the two.” ' The metaphor is a medium for speaking about a 
 transcendent God with clues from the human language and experience 
 that He transcends. Because it is a speaking beyond itself, such biblical 
 “metaphor allows no resting place in the image of God female—nor in 
 the image of God male.” '* One image is countered by another. At one 
 time or another God is mother, midwife, and father.’ The language of 
 the Bible thus “preserves with exceeding care the otherness of God.” “ 
 
 With respect to male and female, the metaphor points toward their 
 difference and similarity, their separation and unity.” In the biblical 
 poem, male and female are created simultaneously and presented to the 
 reader as a verbal unit, differentiated but united. In the sentence and 
 its context in the first chapter of Genesis, male and female are lexically 
 and grammatically equal terms. The relation will shortly be overtaken 
 by hierarchy as the story proceeds, but insofar as the image of God is 
 concerned, humankind is male-and-female. 
 
 So do womanly metaphors continue in the vocabulary of the biblical 
 writers undiminished and undiminishing in their speech about God. Un- 
 surprisingly, when the writer needs a powerful image for the powerful 
 act of God in the exodus, the obstetric metaphor presents itself. 
 
 At times — strikingly, unforgettably, terribly — the biblical texts enact 
 abuse of women. Phyllis Trible identifies them as texts of terror. The 
 story of Hagar is an example (Gen. 16, 21). Hagar is a lone Egyptian 
 woman in bondage to the Hebrews in Canaan. She flees, making her 
 own exodus. But an angel arrests her and forces her to return to be 
 abused further. “Inexplicably,” Trible writes, “the God who later, see- 
 ing ... the suffering . . . of a slave people, comes down to deliver them 
 out of the hand of the Egyptians. . . here identifies with the oppressor and 
 orders a servant to return not only to bondage but also to affliction.” "° 
 There are other examples: like the nameless concubine in Judges 19, who 
 is tortured, gang-raped, and cut in pieces. 
 
 However, in the beginning of the exodus story, women and their labor 
 are valued and placed at the center. The image of the midwife is thereby 
 made available for just labor of its own, and Moses may justly be 
 counted among the company of Shiphrah and Puah. 
 
 “Show us a hulking woman with scales, blindfold, and sword,” write 
 
 Dennis Curtis and Judith Resnik, “and the association is immediate: 
 Justice.” '? She is the accepted image, usually stationed in an exalted 
 
 56 CALLED BY STORIES 
 
location atop a pedestal or public building, gripping her sword and 
 scales. 
 
 Were there to be an image of the holiness that the Moses saga counts 
 as justice, it would be a midwife, on the ground, her eyes wide open, 
 
 and her hands fully employed in the work of delivery. 
 
 MIDWIVES 57 
 
10. Socratic Midwifery That Isn’t 
 
 Modern teachers, including teachers of law, say that they employ the 
 midwife method. They identify it as maieutic from the Greek rather 
 than as meyaledethic from the Hebrew. They do not have Shiphrah, 
 Puah, or Moses in mind. They are affiliating themselves instead with 
 Socrates, the hero of Plato’s dialogues, who says he is a midwife. Mid- 
 wifery in the biblical stories provokes reassessment of the claim. 
 
 Socrates introduces himself as a midwife in Plato’s dialogue Theaetetus. 
 He says that his mother was “a midwife, brave and burly,” and that he 
 is one, too, because he aids in delivering the thoughts brought forth by 
 young men.’ He claims that his art is in most respects like that of mid- 
 wives, “but differs, in that I attend men and not women, and IJ look after 
 their souls when they are in labour, and not after their bodies.” * 
 
 In the course of a long argument in the Theaetetus, however—and 
 on this point I depend upon Gregory Vlastos’s interpretation—he does 
 not deliver the brainchild of another. Instead he attributes to the docile 
 interlocutor an imaginative construct of his own making.* Socrates is 
 the productive party. Either not much of midwifery is involved (Soc- 
 rates draws little of the subject from Theaetetus) or something other 
 than midwifery is performed (Socrates provides the theses with their 
 real interest). 
 
 Moreover, Socrates refers to “pangs of labor” induced by his art and 
 says that they are of such “perplexity and travail” as to be “even worse” 
 than the labor pains of women.’ He adds that, although the work women 
 do as midwives is very important, it is not so important as his own.® 
 And, he says further, when pregnant men give birth to ideas, the prod- 
 uct, too, is worthier. According to Socrates’ statements in the Sympo- 
 sium, the souls of creative men “conceive that which is proper for the 
 soul to conceive,” and they give birth to children “fairer and more im- 
 mortal” than the babies born to mothers.’ In Socratic midwifery males 
 displace the mother, the midwife, and the blessed event.* 
 
 In a thoughtful essay on Socratic midwifery, M. F. Burnyeat refers 
 to the “compelling naturalness” of the metaphor of the mind giving 
 birth to ideas, and he believes that it corresponds to felt experience.’ I 
 wonder whether what he feels is felt as compellingly natural by others 
 
and whether the feeling devalues the pain and significance of labor. Do 
 women who have given birth to babies feel that they also give birth to 
 ideas? Those whom I have recently consulted say no. 
 
 Modern practitioners of the question-and-answer method of teaching 
 —as exemplified by Professor Kingsfield of The Paper Chase'® —rou- 
 tinely identify their method as maieutic or Socratic. Although the 
 method is better identified as catechetical, eristic, or simply question- 
 and-answer, it can be sensibly called Socratic to the extent that Profes- 
 sor Kingsfield stars in a rerun of the Theaetetus. 
 
 Philip Areeda of the Harvard Law School was a distinguished practi- 
 tioner of the question-and-answer method. He identified it as Socratic 
 and commended it to others. He said that it immerses students in the 
 methodology of the lawyer’s work: deciphering texts, reconciling tex- 
 tual inconsistencies, grappling with principles, making arguments by 
 analogy, etc." In class, the teacher frames a series of questions in such a 
 way that students are cleverly led to answers that they think they have 
 discovered for themselves.'* The method succeeds when the student in- 
 ternalizes the process and develops the ability to ask the kinds of ques- 
 tions that the teacher raises in class.'* The teacher could offer lectures 
 on legal method, but “methodologies are better absorbed when actually 
 practiced by the student and when made concrete by actually being used 
 to solve a legal problem.” “ 
 
 The method can work well in the hands of teachers as skilled as 
 Areeda, especially in the early weeks of such classes as Property Law 
 and Contracts, but no more than Socrates in the Theaetetus do teach- 
 ers in law school classes perform deliveries.” The very thing that com- 
 mends the method—the higher degree of absorption—discloses its 
 underlying image to be that of osmosis. The dense mind and experi- 
 ence of the teacher flow to the less concentrated student. This is not the 
 movement of childbirth. The midwife does not come to her work with 
 a fetus tucked away out of view that she inserts into the womb and then 
 extracts so skillfully that the mother has the impression that the labor 
 and the baby are her own."® 
 
 Perhaps, too, negative effects of the law school method’s aggressive 
 practice may have greater specific impacts on women.’” Some critics 
 suggest, for example, that the method is an authoritarian, competitive 
 form of interaction that may tend to exclude and silence women in par- 
 ticular." 
 
 SOCRATIC MIDWIFERY THAT ISN'T 59 
 
In biblical usage God and Moses deliver Israel, and the association 
 of their performances with midwifery pays respect to women’s labor. 
 When Socrates draws no beliefs from another or performs a delivery 
 of sorts but regards it as impressively superior to childbirth, and when 
 teachers of law induce students to absorb a methodology or beleaguer 
 them until they succumb, they do not act as midwives, certainly not in 
 keeping with the biblical example. The metaphor of midwifery is either 
 unjustly employed or works only for those with an impoverished and 
 impoverishing sense of what is involved in childbirth.” Socrates and 
 Professor Kingsfield are not Shiphrah and Puah. 
 
 60 CALLED BY STORIES 
 
11. Socratic Midwifery That Is 
 
 The image of the midwife fails in the Theaetetus, but the hero of that 
 dialogue is not the same Socrates that he is in the other dialogues. There 
 is another Socrates with a better claim to be a midwife. This is the Soc- 
 rates who appears in dialogues that Vlastos identifies as falling in Plato’s 
 early period of writing. (The sequence of the dialogues is debated. I 
 make limited use of Vlastos’s approach because I find it the most pres- 
 ently useful of the valid interpretations.) ' 
 
 In Vlastos’s reckoning, the Theaetetus comes from Plato’s middle 
 period of writing.” The Socrates of these materials lays “to rest the 
 demon of contentiousness within him” and becomes the character who 
 supplies his own subject matter; he refutes theses that he has himself 
 proposed.’ In other dialogues he will become a didact who expounds 
 truth to consenting listeners.* 
 
 The Socrates of the early dialogues is complex and pugnacious: 
 “Show that what I say is false,” he challenges an interlocutor in the Gor- 
 gias. “If not, stand up to questioning.” * This Socrates never claims that 
 he is a midwife, but I think that his action traces the movement of one. 
 He draws statements of belief from interlocutors and then draws from 
 them others that are inconsistent with the first. The proponent produces 
 both the theses and the material for their refutation.® 
 
 The demonstration of inconsistency is not precious work. It often hu- 
 miliates the interlocutor and leaves onlookers and readers alike in per- 
 plexity. I. F. Stone says that Socrates does not so much bring thoughts 
 to birth as “stifle them one by one as they emerge from the dialecti- 
 cal womb. The midwife seems to be an expert abortionist.” ’ Stone’s is a 
 credible view. Another is possible, and I pursue it: Socrates’ destructive 
 exercises are the delivery of a certain kind of life.* 
 
 Men are not so wise as they think. They can be freed from their pre- 
 tense through robust, testing dialogue that provides no relieving cer- 
 tainty but does fuel the ongoing quest for moral truth that constitutes 
 the worthy life.” The mandatory, frequently stated prerequisite for par- 
 ticipation is to say only what one truly believes about how best to live."° 
 Socrates’ exposure of these beliefs’ inconsistency zs destructive and 
 shaming and in this sense painful, but it is necessary to the beginning 
 and continuation of an examined life and is more delivery than abortion. 
 He delivers a new life. 
 
The Hebrew midwives deliver Israelites into a hard life in Egypt, and 
 Moses delivers them into a long trial in the desert. Socrates liberates 
 young men of Athens for a lifelong, periodically humiliating struggle. 
 He is as loyal and vulnerable in the work as Shiphrah and Puah are. To 
 Critias he says: “You come to me as though I professed to know about 
 the questions which I ask, and as though I could, if I only would, agree 
 with you. Whereas the fact is that I enquire with you into the truth of 
 that which is advanced from time to time, just because I do not know.” " 
 
 Socrates employs irony, but he does not engage in put-ons. He is fun- 
 damentally invested in what he does. “I should like to examine further,” 
 he says at one point, “for no light matter is at stake, nothing less than the 
 rule of human life.” '* His trial and death realize the truth that all along 
 he has risked his own life in his labor.”’ After his trial and under sentence 
 of death, he explores with Crito the proposal of escape to a neighbor- 
 ing city. He cannot do it. What would he say to the citizens of another 
 city? Who could he be? How could he live “eating and drinking . . . , 
 having gone abroad in order that I may get a dinner”? '* As James Boyd 
 White says, “he cannot leave without abandoning himself.” '’ He cannot 
 be more fully committed."® 
 
 This Socrates is more the midwife, but not if he is equally dismissive 
 of women. At his trial he remarks that certain men are “no better than 
 women.” '’ The statement is made in the context of Socrates’ refusal to 
 bring his family into court, as others have done, for the doleful purpose 
 of tearfully petitioning for his acquittal. He will not discredit himself, 
 the court, and the state in this manner, for, he says, men of reputation 
 ought not demean themselves. And then he adds: 
 
 I have seen men of reputation, when they have been condemned, be- 
 having in the strangest manner: they seemed to fancy that they were 
 going to suffer something dreadful if they died, and that they could be 
 immortal if you only allowed them to live; and I think that such are a 
 dishonour to the state, and that any stranger coming in would have said 
 of them that the most eminent men of Athens, to whom the Athenians 
 
 themselves give honour and command, are no better than women."* 
 
 The comment about women is what a “stranger coming in” would 
 say. This may be the strange Socrates’ way of expressing what he had 
 himself spent a life concluding: The most eminent men of Athens are no 
 better than women— or than other men. Athens was built around proud 
 men, Thomas Brickhouse and Nicholas Smith observe, and Socrates’ 
 
 62 CALLED BY STORIES 
 
“mission had the effect of showing young people how little their fathers 
 really knew about how to live, and how ill-supported their values and 
 traditions were.” ” 
 
 Socrates’ critique proceeds within the shared morality and is directed 
 at received conduct sustained and limited by the received institutions.”° 
 Nevertheless, he challenges the most fundamental understanding and 
 practice of justice.*! What he expresses variously in the dialogues and 
 finds unrefuted to the end is that “we ought not to retaliate or render 
 evil for evil to any one, whatever evil we may have suffered from him.” 
 This is not an assault on patriarchy; it is a trial of the masculine, heroic 
 tradition.”*? And although it is no express valuation of women, it does 
 confront the source of their devaluation. 
 
 Socrates did not practice his strange vocation with women. As Martha 
 Nussbaum points out, however, he could not really do so, since women 
 were not commonly to be found outdoors.”* And then, in the life after 
 death he anticipates, when, he says, he will “be able to examine the 
 leader of the great Trojan expedition; or Odysseus or Sisyphus,” he will 
 be able to examine numberless other men as well —and at last, he adds, 
 “women too! What infinite delight would there be in conversing with 
 them and asking them questions!” ”” 
 
 There is then a Socrates, or the possibility of a Socrates, who prac- 
 tices a type of midwifery. In his life after death, released from the con- 
 straints of Athenian life, he would continue his work in company with 
 
 the valued, original practitioners of the art. 
 
 It is textually sufficient to say that the Hebrew midwives delivered 
 babies, feared God, and defied Pharaoh. But it is rewarding to find their 
 example unfolding more fully in poetic association with Moses: his de- 
 livery of Israel is like theirs, his complete devotion to the subject and the 
 community is like theirs, his guidance from the higher politics of God 
 is like theirs, and his resistance to the established order of Egypt is like 
 theirs. The associations enhance understanding of both Moses and the 
 midwives. 
 
 The Socrates of the early dialogues, in obedience to his own god, 
 gives himself to delivering the worthy life. The leading men of Athens 
 perceive his practice to be capitally subversive. I read this Socrates as a 
 midwife after the fashion of Shiphrah, Puah, and Moses. 
 
 I detect no embarrassment when modern practitioners of the question- 
 and-answer method of teaching casually refer to it as maieutic or So- 
 
 SOCRATIC MIDWIFERY THAT IS 63 
 
cratic. There is attraction in the figure of the midwife, and I, too, am 
 drawn to it. I should like to imagine myself as a midwife: The teacher of 
 law who delivers the lawyers that students have conceived the notion to 
 become; the lawyer delivering clients’ thoughts, plans, hopes, and as- 
 pirations in forms nurtured by law. (A group of committed women in 
 Athens, Georgia, conceived the idea for a day care center for the chil- 
 dren of homeless families, and lawyers helped give it birth as a nonprofit 
 corporation.) I could then say that there is correspondence between the 
 teaching and the practice of law: the teacher performs for students a 
 type of the exemplary maieutic service that they are expected to per- 
 form for others. 
 
 I should like to press the idea that the teaching and practice of law 
 can be maieutic or, better, meyaledethic. I should especially like to do 
 so against arguments that the image is sentimental. But I hesitate. The 
 justness of the metaphor requires testing. 
 
 The early, maieutic Socrates comes to his encounters without notes in 
 hand ora carefully planned series of hypotheticals and follow-up ques- 
 tions in mind. He makes no assignments. He has no lesson to be ab- 
 sorbed by students. He has neither information nor methodology.”* He 
 brings himself, and he takes his material from the interlocutors. He en- 
 gages them in dialogic trial not because questions and answers are more 
 effective than lecturing but because only so do the participants have 
 something to examine. He draws from them one at a time what they 
 truly believe about life, and his life as well as theirs is at issue. 
 
 That the law school method is not Socratic has been well argued.”’ 
 That we nonetheless continue to say that it is may be a statement of as- 
 piration: We would be more like Socrates. If so, the claim may serve as a 
 critical encouragement to do better, and some legal scholars have taken 
 it just this way to good effect.”* But the broad challenge of the Hebrew 
 midwives, Moses, and Socrates is not to be exhausted in the reforma- 
 tion of teaching methods and classroom dynamics. More than a method, 
 maieutics is a way of being and acting, a way of living in delivering the 
 lives of others.”? 
 
 What would it really mean fora lawyer ora teacher of law to be a mid- 
 wife as Shiphrah and Puah, Moses and Socrates were midwives? An- 
 swers will likely be several and open-ended, and they will depend upon 
 experiments followed by curing, critical examination in the community 
 of practitioners. I offer a venture of my own for scrutiny. 
 
 64 CALLED BY STORIES 
 
12. Are You the Lawyers? 
 
 This report of my experiment is an act of hope rather than a statement of 
 accomplishment. I feel obliged to offer it for testing because I imagine 
 a reader asking: “What do you mean by midwifery in the legal profes- 
 sion? How can a lawyer or teacher be a midwife? Can you not give a 
 specific example?” I feel bound to draw the example from my own ex- 
 perience in response to the imagined reader asking: “How do you act? 
 What are you actually doing as a lawyer and teacher of law? Have you 
 made no attempt to practice what you talk about and believe?” 
 
 In what follows, I am not Socrates. I am the interlocutor who speaks 
 in anticipation of critical dialogue that will prove as unexpectedly hu- 
 miliating as curing. 
 
 For many years I taught a course in jurisprudence, and for a long time 
 in teaching it I pressed students to ask two questions: “Who am I as a 
 lawyer?” and “What am I doing when I do law?” ' It became increas- 
 ingly necessary to take our readings less from standard jurisprudence 
 and more from such sources as the Moses saga and Plato —and Greek 
 tragedy, Icelandic sagas, and modern works like Black Elk Speaks, Bes- 
 sie Head’s Maru, and Toni Morrison’s Beloved.” 
 
 To read such texts in context meant that my students and I had to read 
 them consciously in our context as well as in what we could construct of 
 theirs. And that in turn meant that we had to take our law school con- 
 text more seriously. We needed to explore how my life as a lawyer ina 
 nexus of responsibilities and theirs as law students could be part of the 
 material to which we would bring our imagination and critical scrutiny. 
 
 All of us had extracurricular responsibilities that had acquainted us 
 with the streets of Athens, and we knew people there who led hard lives. 
 It seemed natural that we should add to the discipline of reading texts 
 together the discipline of responding together to the school’s neighbors, 
 those who inhabit the streets, shelters, and jails. 
 
 Encouraged by the example of others at other schools, I set in mo- 
 tion the Public Interest Practicum, a two-semester course with a sum- 
 mer component.’ Participants began in the second year of law school, 
 and most continued through their third year to help conduct the class. 
 
 Other teachers of law have noted that there is a connection between 
 Socrates and clinical education.* Philip Areeda unintentionally made a 
 
case for clinics when, in endorsing the Socratic method, he noted that 
 students are more likely to stay awake and to learn better when they 
 actually practice thinking like lawyers and use the peculiar logic of law 
 to solve real problems. In clinics, students really do have to employ legal 
 materials like lawyers, and classroom stupefaction is rarely a problem.’ 
 Clinics have a substantial history, and my experiment, which was in part 
 clinic-like, was coincident with a renewed interest in them and in theo- 
 ries of lawyering.® I was a latecomer on the fringes. 
 
 When the class ventured out of the law school and into Athens, some 
 of our early stops were at sites in the legal system. One was an early 
 morning bail hearing at the local jail in a room set aside for the purpose. 
 Among the assembled prisoners was a young man who wouldn’t bend 
 to the metal folding chair provided. He remained nearly straight, his 
 body in contact with only the top of the chairback and the front edge of 
 the seat. His eyelids were heavy, as though he had been waked too soon 
 from sleep. Or hadn’t been to sleep. Whenever his heels lost purchase 
 on the floor, he slid down and out of the chair. The presiding magistrate 
 court judge was upset by his attitude and his extensive record and set a 
 bail so high there was no chance of an early release. When the judge an- 
 nounced the amount, the prisoner’s only perceptible response was the 
 silent flexing of his jaw muscles. He was not very old. I thought he was 
 fighting back tears. Later, the judge told me he thought I was wrong. 
 
 That visit had two consequences. Our class subsequently worked with 
 the public defender /legal aid clinic in providing a range of services to 
 clients in addition to criminal defense, and I agreed to serve as a magis- 
 trate from time to time as the need arose. 
 
 Another early stop was juvenile court. The first hearing centered ona 
 fourteen-year-old girl. Early in September, not long after school began, 
 she had been cited for truancy. No one tried to get her back in school. 
 Instead, a hearing was set for mid-January. She lost the fall semester. At 
 the January hearing, the judge gave her a severe lecture and depicted 
 the bleak future waiting for her if she failed to get her life in order. She 
 was forlorn. She found it hard to sit still. She shuffled her feet. When 
 the judge threatened to have her detained in what is known as the Youth 
 Development Center and when he put hard questions to her that she 
 did not want to answer, she looked down at the table and the fingers 
 of her right hand went to the back of her head for the reassurance of 
 a quick, light caress of her ponytail curl. She was overweight. A scar 
 angled across her face. She hadn’t much to say for herself. But the pony- 
 
 66 CALLED BY STORIES 
 
tail had been so carefully done. And there was a gold ring in one ear and 
 another in her nose and a gold chain around her neck. These may have 
 been the adornments of a brutal sex trade that young girls are forced 
 into, but I hoped that they were emblems of an embryonic core of self- 
 esteem, some small, stubborn sense of self-worth that could yet be de- 
 livered. 
 
 From that first encounter in juvenile court, some of the law students 
 went on to become court-appointed special advocates, others devel- 
 oped an educational program for children on the verge of involvement 
 with the juvenile justice system, and others began to work with young 
 people doing time in the county’s alternative school. As was generally 
 true in the course, these efforts were the product of the law students’ 
 initiative and inventiveness. 
 
 Some individuals we worked with came to us through the legal sys- 
 tem, others were sent by community service organizations that also be- 
 came clients of ours. (The students began to identify and fill gaps in 
 law-related community services and so founded, for example, a pro- 
 tective order project for abused women.) The source for most of our 
 contacts was regular visitation to places like Project Safe for threatened 
 women, the Salvation Army, and Our Daily Bread, a local soup kitchen. 
 
 The soup kitchen occupies the basement of a red brick Methodist 
 church. Volunteers cook and serve lunch each weekday to people who 
 unpredictably number from 50 to 150. Our Daily Bread sometimes re- 
 ceives food to distribute. Clothes may also be available and, in the win- 
 ter, blankets. Alcohol and drugs are not permitted on the premises, but 
 people enslaved to their use are welcome. Once a hungry but sober man 
 came with a circular wound to the middle of his forehead. He told one 
 of my students that he had taken a fall. Later the Methodist minister ex- 
 plained to her that the man could not afford alcohol or drugs and had 
 attempted instead to knock himself unconscious against a tree. 
 
 Not everyone comes to the soup kitchen for food. There is a core of re- 
 peat guests who come for the company. In the winter some people come 
 to get warm. In the summer an elderly couple, whom I have never seen 
 eat, bring a pickup load of neighborhood kids, many of whom still have 
 light and fun in their eyes and leave with food all over themselves. Evan- 
 gelists from other denominations sometimes come to work the crowd. 
 The Methodists feed everyone and make no demands. 
 
 When we first started our visits there, we did not eat. We would be 
 introduced at the beginning of mealtime, and then dutifully wait in Sun- 
 
 ARE YOU THE LAWYERS? 67 
 
day school rooms in an adjacent building. Clients sought us out, but the 
 numbers and the dynamics improved dramatically when we learned to 
 sit at the table and eat with everyone else. A lot of business was done 
 that way, at the tables. Only when privacy demanded was it necessary 
 to retire to the other rooms or to chairs under the oak tree outside. 
 
 The work included an abundant variety of issues. Employment dis- 
 putes were a frequent subject, and the students were generally success- 
 ful in resolving them. One dispute involved three women who had quit 
 working at a direct dial business when they became suspicious about the 
 legality of the operation. The owner had refused to pay the wages he 
 owed them when they left. They were afraid to return and demand pay- 
 ment. They asked one of my students what to do. My student made a 
 simple but very effective move. She sent the three back to their former 
 place of business after telephoning the police to meet them there in 
 order to ensure the public peace. Confronted by the women and the 
 police escort, the owner ponied up on the spot—in cash. 
 
 That was a handy bit of lawyering, but I had trouble helping the stu- 
 dent, and the class when we talked about it afterward, acknowledge the 
 obvious use of force. The police dress in paramilitary gear and carry 
 sidearms. They are members of “the force.” My student’s employment 
 of them was understandable and effective, but she had employed force 
 against another person nonetheless. I think it is difficult generally for 
 lawyers, especially lawyers who represent poor people, to acknowledge 
 that their work involves the use of force. The subject of violence in law 
 is not easily taught. 
 
 Easier to learn at the soup kitchen is how to deal with questions about 
 social security, health, mental health, housing, birth certificates, IDs, 
 landlord-tenant disputes, child support payments, and clothes left at 
 a laundry for washing and no money to redeem them. Sometimes the 
 most difficult part is the follow-up. Clients typically have no telephones 
 and no certain addresses, and they may return to the soup kitchen only 
 rarely or not at all. 
 
 In all of this, I was learning along with my students, and they often came 
 to know more and better than I did. One advantage of my serving the 
 joint novitiate was that my office as a teacher did not derive from know- 
 ing more than the students about the particulars of the work. Another 
 was that the students had to take more than the usual responsibility for 
 themselves, the course, and our service. When, in serving a client, stu- 
 
 68 CALLED BY STORIES 
 
dents confronted a problem they did not know how to solve, they would 
 ask me what to do. Often I would say: “I don’t know,” and we would try 
 to figure out together how to proceed. 
 
 It took students several weeks at the beginning of each year to under- 
 stand that I really didn’t know and a good many more weeks to recover 
 from that realization. They were at first disconcerted (“What kind of 
 teacher is this?”). So was I (“I don’t know”). But the long-term effect 
 for the majority was the release of their responsive creativity and a re- 
 newed commitment. They now had an immediate reason to learn about 
 property law, employment law, procedure, and the like. And they began 
 to look upon their other teachers, including the Professors Kingsfield, 
 as welcome aids to self-education in time of need. I was not a failure as 
 a supervisor of the street work, but I was rather more lucky than suc- 
 cessful. 
 
 Some recent literature on lawyering correctly criticizes how lawyers 
 with their expertise, language, and peculiar manner may abuse clients 
 by disempowering them.’ Lawyers who engage in public interest and 
 pro bono work are especially susceptible to what William Stringfellow 
 described as the “peril of tyrannizing the one of whom it is said he is 
 being helped,” because the reason for doing good to the other is the jus- 
 tification of the doer.* We were also liable to measure our success by the 
 regrettable standard he warned about: “How far the one who is being 
 helped becomes like the one who is helping him.”” 
 
 The students and I suffered the temptation to do-gooding and its at- 
 tendant attitude of self-righteousness. Sometimes clients were a cure. 
 Some were wily, strong, knowledgeable, and impressively skilled in the 
 art of survival, and they wouldn’t tolerate our self-righteousness. Less 
 productively, others simply skipped appointments. It also helped when 
 other faculty members and lawyers attended class meetings at our invi- 
 tation and offered criticism. 
 
 We continued to be troubled about disempowering our clients— 
 about our not acting as midwives to the extent that we could—but 
 sometimes talk about empowerment and disempowerment was an ir- 
 relevant luxury. Some of our clients were worn out by life, by alcohol 
 and other drugs, by their spouses, by their parents, by their children, by 
 the system, by the clock. Anything other than survival was not a present 
 option. We learned simply to offer help in those cases and not to make 
 much of it when the offer was accepted. 
 
 We also learned that there were circumstances in which nothing could 
 
 ARE YOU THE LAWYERS? 69 
 
be done. In Emily Fowler Hartigan’s description, we could only “dwell 
 with” the person." And if the person disappeared, we could not do even 
 that much. 
 
 Those exceptional occasions prevented our becoming lost in technique 
 and kept before us fundamental questions about our work. Such ques- 
 tions were also regularly raised by our reading. Our work with people 
 was demanding and often compelling, and its growth made it difficult to 
 continue reading literary and jurisprudential texts together each week. 
 But I insisted on the practice, and the students persisted. A few of the 
 discussions were failures, but the students, in spite of some grumbling, 
 grew grateful for the reading and even depended on it. They were ca- 
 pable of impressive care and creativity in their interpretations and of 
 inspired connections between the texts and their work." 
 
 The nature of what we did was another continuing source of ques- 
 tioning. Sometimes the students and more often their colleagues and 
 mine asked whether our labors were not social work, or business, or 
 organizing, or whatever, instead of law.'* Their questions were another, 
 useful type of those provoked by the texts: “Who am I as a lawyer?” and 
 “What am I doing when I do law?”” 
 
 Much of our work did not require specific legal training, but that can 
 be true of the practice of law as well. Nevertheless, acquiring the skills 
 and knowledge of lawyers and thinking like lawyers, as my students 
 were quickly learning to do, counted for them. And it counted for our 
 clients, too. They attached special significance to our association with 
 law even when we performed work for them that could have been done 
 by people with no legal training at all."* 
 
 As we made our regular rounds and attended people in their own 
 venues — we had no office for them to visit— conversations repeatedly 
 began with the question: “Are you the lawyers?” It was a straightfor- 
 ward, practical question, but it also bore larger meaning when the stu- 
 dents and I tried to sort out its connotations. 
 
 Our questioners were undeterred by students’ careful explanations 
 that they were law students, not lawyers, and many things could fol- 
 low. One soup kitchen client had been born at home in rural Georgia in 
 1942, an event given fleeting attention by custodians of official records 
 who had written the mother’s name on the birth certificate in the space 
 where the son’s was required. Our client was officially his mother. He 
 asked if we could do something about it so he could qualify for dis- 
 ability benefits. (We could.) Another client said that a Brooklyn jury 
 
 7O CALLED BY STORIES 
 
had awarded him $150,000 after he had been falsely arrested and jailed 
 fora year: Could we do something to get the money for him? (We could 
 not. What he said proved to be true, but the award had been overturned 
 on appeal.) He had a record showing only the arrest and imprisonment, 
 and he could not find work without clearing it. Could we do something 
 about that? (We could.) 
 
 We never knew what would follow after the question: “Are you the 
 lawyers?” Usually it would be a story. So we did a lot of listening, and 
 our capacity for listening was improved. Sometimes listening was 
 enough, but typically we were expected to shape the stories into words 
 that produced action.” To that end we made telephone calls and per- 
 sonal contacts for our clients, frequently in their company, and we wrote 
 letters and drafted documents on their behalf. Along with their stories 
 people often brought texts for us to assess: bills, dunning letters, form 
 letters from governmental agencies, notices from courts, old deeds, 
 contracts. And we generated more texts in response. 
 
 This speaking and writing for others had a certain scribal character. 
 The image of the scribe was made freshly vivid for me by a National 
 Public Radio interview with Jimmy Santiago Baca that aired in the early 
 stages of the course. Baca is a poet, essayist, screenwriter, and some- 
 time prisoner. He taught himself to write while he was in prison because, 
 he said, “I wanted to make an epitaph for myself. I wanted to tell the 
 world I had been here.” '* He wrote for himself, but his literacy caught 
 the notice of his illiterate fellow inmates: 
 
 So they were coming up to me. .. . Could you write my mother a let- 
 ter? ... so I’d write him a letter . . . and this man who was the most 
 feared in society would start to weep. And I’m standing there . . . see- 
 ing the power of language for the first time in my life. And then another 
 man came by and said, hey man, I’ve got this girl in Georgia, man, could 
 you write hera letter ’cause I want her to come visit me but I don’t know 
 how to tell her... . 
 
 So I became a scribe, it’s no big deal. . . . It was like you give me a 
 box of pencils, I'll write the poem for your girlfriend. . . . And what 
 happened to me was the people that wanted to beat me up were then 
 coming to me saying, hey you know what man? You're alright . . . and 
 ultimately, I became the spokesman." 
 
 When people came up to us and asked, “Are you the lawyers?” I think 
 they were asking for someone like a scribe in Baca’s sense. They asso- 
 ciated us with the power of language. They were asking something like: 
 
 ARE YOU THE LAWYERS? 71 
 
“Could you write the system a letter for me in the effective language of 
 lawyers?” 
 
 Scribes like Baca are not scriveners.'* They do not merely copy. They 
 combine heart with mastery of technique to deliver the voices of others. 
 If there were midwifery with words, this would be it. 
 
 In the biblical story, God rewards the midwives. He gives them families 
 (Exod. 1:21). My students received a similar gift in kind. In serving our 
 clients, they learned substantive law and techniques of lawyering, but 
 more than that, in giving voice to others, they began to find their own 
 voices. They grew in confidence, creativity, responsibility, skill, and a 
 sense of their vocation. I frequently had to urge restraint. Because the 
 work was at once so captivating and freeing, students could become 
 totally immersed in it, and I would have to ensure that they did not ne- 
 glect their other classes whether or not the subjects bore directly upon 
 our work. 
 
 There was reciprocity for me as well. The students had multiple teach- 
 ers in the course: clients, the work, each other, and me. I supplied them 
 with support, some guidance, and a place to bloom. It was and it wasn’t 
 a big deal. In return I received the compelling need to write this book. 
 The last book I wrote helped generate the course, and the course helped 
 generate what I am doing now. I am still unpacking the question: “Are 
 you the lawyers?” If you are the lawyer, who may you be said to be? And 
 how? What are legitimate guiding images for a person who is a lawyer? 
 What are the sources for these images, and where do they lead? The an- 
 swers are my present occupation. 
 
 What the students learned to do for others and the way they learned 
 to do it exhibited some maieutic characteristics. Although our clients’ 
 concerns might have been seen by others as trivial, they did not seem 
 trivial to either the clients or us. Their stories were critical to their lives 
 and well-being, and they warranted delivery in the forms of lawyers’ 
 language and in the unspecialized forms that have added effect when 
 law students and lawyers use them. In investing themselves in the work, 
 the students absorbed knowledge and skill, but they could also find that 
 their inherent potential was liberated, enlivened, and confronted with 
 ongoing, fundamental questions. 
 
 Some important signs of midwifery were missing. There was no cen- 
 tral figure like Shiphrah, Puah, Moses, or Socrates. We precipitated little 
 or no systemic change in the school or the community. We posed little or 
 
 72 CALLED BY STORIES 
 
no threat to the establishment. And for not disturbing the fathers — or 
 for not disturbing them too much or for only seeming to disturb them — 
 I continue to enjoy tenure and a comfortable salary. But am I wrong to 
 think that, on balance, we made a start in the right direction? 
 
 ARE YOU THE LAWYERS? 73 
 
13. Miriam 
 
 Moses is midwife, but he is also not midwife. At Sinai, after he de- 
 scends the mountain, sees the Israelites at their celebration of the golden 
 calf, and smashes the two tablets of stone, he presides over a murderous 
 slaughter: 
 
 When Moses saw that the people were running wild (for Aaron had 
 let them run wild, to the derision of their enemies), then Moses stood 
 in the gate of the camp, and said, “Who is on the Lord’s side? Come to 
 me!” And all the sons of Levi gathered around him. He said to them, 
 “Thus says the Lord, the God of Israel, “Put your sword on your side, 
 each of you! Go back and forth from gate to gate throughout the camp, 
 
 999 
 
 and each of you kill your neighbor.’ ” The sons of Levi did as Moses 
 commanded, and about three thousand of the people fell on that day. 
 
 (Exod. 32:25-28) 
 
 By shedding the blood of their own, the Levites consecrate them- 
 selves as priests: “Moses said, “Today you have ordained yourselves for 
 the service of the Lord, each one at the cost of a son ora brother, and so 
 
 ’ 99 
 
 have brought a blessing on yourselves this day’ ” (Exod. 32:29). It is an 
 astonishing reversal of the art of midwifery and an alarming introduc- 
 tion to the nature of priesthood. 
 
 Moses is midwife and not midwife, and in this he reflects God. Biblical 
 texts employ the image of the midwife in talking about God. As Phyllis 
 Trible notes, however, there is no resting place in such an image in a text 
 that would speak of the transcendent God." In calling for the slaughter 
 of his neighbors, Moses utters the words of God, and the text thus bears 
 witness to His otherness. The Deliverer and Nurturer receives the death 
 of three thousand of the delivered and nurtured. 
 
 This episode is prefigured early in Moses’ story when God first sends 
 Moses to Egypt and on the way inexplicably attempts to kill him. The 
 difference in that circumstance is the presence of a woman. Zipporah 
 thwarts God’s murderous intent with a bloody foreskin. Women shelter 
 Moses in his early years, and a woman saves him in his maturity. The 
 text provides no woman to save the three thousand killed at Sinai. In 
 fact, after Zipporah, women no longer figure as prominent actors in the 
 story — except for Miriam. 
 
Miriam is introduced as Moses’ sister at the beginning on the banks of 
 the Nile, but she is not identified by name until she returns to the story 
 immediately after the exodus on the far side of the sea. At the conclu- 
 sion of its prose account of that crossing over, Exodus appends a song 
 of Moses that rehearses and celebrates the triumph. And then it adds a 
 repeated, shorter section of the poem, the Song of Miriam: “Sing to the 
 Lord, for he has triumphed gloriously; Horse and rider he has thrown 
 into the sea” (15:21).” Miriam is a prophet, capable of ecstatic rousing, 
 and it is she who provokes the women’s victory festival with tambou- 
 rines and dancing in the desert. The song she composes for the occa- 
 sion celebrates God’s triumph in Israel’s liberation. To the women there 
 is satisfying symmetry in the deed. The Egyptians would have thrown 
 their babies into the river; God has now thrown the Egyptians into the 
 sea. Revenge in the biblical stories is neither repressed nor casual. To 
 the Hebrew women it is sweet and heady, and they do not spare their 
 unbridled rejoicing. 
 
 Miriam, releasing praise, moves at the center of Israel’s defining mo- 
 ment.’ It therefore comes as no surprise when Micah remembers Miriam 
 as one of the leading actors in the exodus. He reports the words of God: 
 “For I brought you up from the land of Egypt, and redeemed you from 
 the house of slavery; and I sent before you Moses, Aaron, and Miriam” 
 (Micah 6:4). 
 
 Later, during Israel’s journey through the wilderness, Miriam’s con- 
 tinuing political power emerges a last time in the text. She and Aaron 
 challenge Moses’ exclusive authority as mouth for God: “Has the Lord 
 spoken only through Moses? Has he not spoken through us also?” 
 (Num. 12:2). God descends in a pillar of cloud and puts down the rebel- 
 lion. He punishes Miriam with a skin disease and temporary excommu- 
 nication. 
 
 The punishment is discriminatory. Only Miriam suffers, although the 
 text plainly states that “Miriam and Aaron spoke against Moses” (Num. 
 12:1). After she is struck with disease, Aaron pleads with Moses on her 
 behalf, and Moses in turn appeals to God for her healing. God com- 
 mands: “Let her be shut out of the camp for seven days, and after that 
 she may be brought in again” (Num. 12:14). She is, if only for a week, 
 shut out and shut out by God, who leaves her male coconspirator un- 
 touched. In response to this text, Katherine Doob Sakenfeld suggests 
 that Miriam belongs to a line of women who are “rejected or humili- 
 ated for doing exactly the same thing as their male counterparts.” * She 
 reads the incident as testimony to a God who is unfair. That is a viable 
 
 MIRIAM 75 
 
reading of the incident, but it may also be read as testimony to Miriam’s 
 leadership: She was the prime mover in the rebellion. 
 
 Miriam is the last of the strong, strong-minded women in the exodus 
 story. Other biblical stories present other women differently, and even 
 the Moses saga, in addition to omitting women from much of the action, 
 contains dismissive passages such as Moses’ instruction at Mt. Sinai: 
 “And he said to the people, “Prepare for the third day; do not go near 
 a woman’ ” (Exod. 19:15).? However, Miriam is another of the women 
 who encompass Moses and establish the tenor of the text. 
 
 She also prefigures his end. The text places her death and burial im- 
 mediately before the story of Moses’ and Aaron’s offense to God in the 
 miracle at Meribah (Num. 20:1).° At the end of the story, when Moses 
 dies alone and is left to the lonely abandonment of a grave outside the 
 promised land, he follows a woman to the last. 
 
 I shall return briefly to Moses and Miriam after taking note of Rachel, 
 a third person buried along the way. 
 
 76 CALLED BY STORIES 
 
14. Rachel 
 
 Rachel belongs to the Genesis treasury of stories and plays no role in 
 the Moses saga. But the later poetry of Jeremiah suggests an associa- 
 tion between her and Moses: Both are left outside, and both intercede 
 for the children of Israel. But Rachel’s weeping for her children is a form 
 of advocacy that surpasses Moses’ arguments. 
 
 In the Genesis story, Jacob, by sharp dealing and deception, obtains the 
 birthright of his elder brother Esau as well as his father’s blessing, and 
 then he flees north to the family’s ancient home in the region of Paddan- 
 aram, where he takes refuge with his uncle Laban. He straightway falls 
 in love with Rachel, deeply enough to agree to serve seven years of labor 
 to earn her hand. On the wedding night, Laban surreptitiously brings 
 to him instead the veiled Leah, his eldest daughter, and she becomes 
 Jacob’s first wife. Jacob has to labor seven years more for the right to 
 take Rachel as his second wife. 
 
 Because of her father’s treachery, Rachel must share her husband with 
 her sister and then must suffer her sister’s fecundity in the face of her 
 own infertility. Jacob loves Rachel, but Leah bears his children. Leah, 
 too, suffers. She is not only the instrument of her father’s trickery but 
 also, in consequence, the object of Jacob’s hate (Gen. 29:30—33). Rachel 
 yearns for children—“or I shall die” (Gen. 30:1) —but none is forth- 
 coming until Leah has already given birth to six sons and a daughter! 
 At last God “remembers” Rachel, and she bears Joseph. 
 
 After prospering in Paddan-aram at the expense of his uncle /father- 
 in-law, Jacob leaves to return with his household and wealth to Canaan, 
 to Esau, and to his father’s land. Rachel is pregnant. She enters a difficult 
 labor, and she dies as her second child, Benjamin, is born. It is bitterly 
 ironic. She would die if she did not have children and dies having one.’ 
 She is buried along the way. 
 
 The text returns to Rachel when Jacob nears his own end. Ina death- 
 bed conference with Joseph, he sorrowfully recounts what happened to 
 Rachel: “For when I came from Paddan[-aram], Rachel, alas, died in the 
 land of Canaan on the way, while there was still some distance to go to 
 [Bethlehem]; and I buried her there on the way to [Bethlehem]” (Gen. 
 48:7).° 
 
 Rachel’s grave has narrative moment. Explicit in the text are the facts 
 that Jacob buried her “there on the way,” that Jacob attaches burdening 
 
but unexplained significance to the circumstance of her burial, and that 
 her grave is separate. (Her sister Leah was later buried with Jacob in the 
 family burial site at Machpelah, the location of Abraham’s grave.) * 
 
 The rabbinic literature offers an explanation for the siting and cir- 
 cumstance of her burial: Rachel was consigned to a wayside grave so 
 that she would be strategically placed. She was buried by the road her 
 descendants would travel centuries later when they were driven into 
 exile. She could then evoke God’s mercy with her tears as the nation — 
 Ephraim, her descendants, her children— passed by in captivity.’ This 
 elaboration of the text creates an interpretative link between the Gene- 
 sis story about her burial and a poem in Jeremiah. The Jeremiah passage 
 strikes the dominant, remembered image of Rachel: “A voice is heard in 
 Ramah, lamentation and bitter weeping. Rachel is weeping for her chil- 
 dren; she refuses to be comforted for her children, because they are no 
 more” (31:15). In the poem God hears and takes pity. Her children will 
 return (31:21).° 
 
 Rachel is left along the way, outside. In Jeremiah’s poem, her tomb is 
 inhabited by her weeping. She is another of the abandoned women, left 
 out to intercede. She is an alien pleading for other aliens. 
 
 The opulence of the Rachel story schools readers in complexity, contra- 
 diction, and paradox and prepares them for more — for otherness— yet 
 to come. Consider what I have either not dwelt upon or not mentioned 
 in the story. Jacob tricks his elder brother, Esau, and deceives their 
 father, Isaac. God honors the result and undercuts the rule of primo- 
 geniture. Jacob is subsequently duped by his uncle, Laban, whom he 
 later swindles in return (Gen. 32:20). Rachel — the text commits no gen- 
 der discrimination in its portrayal of craftiness and treachery —steals 
 her father’s household gods as the mass of Jacob’s family and posses- 
 sions move out for Canaan. Laban discovers the theft and chases after 
 them. When he catches the caravan, Rachel hides the gods in her camel’s 
 saddlebags and sits on them. After Laban has searched through the pos- 
 sessions of all the others, he approaches Rachel on her camel. She says 
 that she is menstruating. The claim keeps Laban’s hands out of the bags 
 beneath her (and serves as a comment on the gods stuffed into them) 
 (Gen. 31:33—35). All of this transpires between brothers, father and son, 
 nephew and uncle, and father and daughter, all in a single family, the 
 one specially chosen by God to be His people. 
 
 The reader is made ready for the contradictions, paradoxes, and dia- 
 lectics necessary to human speech about the God who is other.’ 
 
 78 CALLED BY STORIES 
 
15. Jeremiah’s Rachel Poem 
 
 Jeremiah’s verses on Rachel weeping belong to a longer poem located 
 in that part of the Jeremiah text known as the Book of Consolation, a 
 collection of oracles written mostly in verse. Jeremiah was a prophet in 
 the southern kingdom of Judah, from about 627 B.c.£. until the destruc- 
 tion of Jerusalem in 587, when he was carried into Egypt and soon died. 
 Much of his prophecy is directed to Judah and the doom that awaits it. 
 
 But the Book of Consolation sounds a note of hope. The oracles con- 
 vey a sense of promise that God will one day return His people to their 
 land. The poem about Rachel is addressed to the northern kingdom, 
 known as Israel, or Ephraim. The original kingdom of David had split, 
 with Israel and its capital eventually at Samaria to the north and Judah 
 with its capital in Jerusalem to the south. The two together covered an 
 area about the size of Wales. Small kingdoms were not viable in the 
 volatile politics that prevailed in that part of the world. The northern 
 kingdom had departed from the law and had turned from God. It fell, 
 and its people had been deported about a hundred years before Jeremiah 
 became a prophet. The southern kingdom, too, had sinned against God, 
 and it, too, would be destroyed and its people sent into captivity during 
 Jeremiah’s lifetime. The poem about Rachel offers hope to the scattered 
 remnants of Ephraim, and perhaps it will offer hope as well to the people 
 of Judah when they are forced into exile. 
 
 Rachel weeping for her children constitutes the first of the poem’s five 
 strophes. I follow for the most part Phyllis Trible’s translation: 
 
 15. Thus says the Lord: 
 A voice on a height! 
 Lamentation can be heard, 
 Weeping most bitter. 
 Rachel is weeping for her sons, 
 Refusing to be consoled for her sons 
 “Oh, not one here!” 
 
 II 
 
 16. Thus says the Lord: 
 
 Keep your voice from weeping 
 
7s 
 
 18. 
 
 20. 
 
 21. 
 
 22. 
 
 80 
 
 and your eyes from tears. 
 For there is a reward for your work — 
 oracle of Yahweh — 
 They shall return from the land of the enemy. 
 And there is a hope for your future — 
 oracle of Yahweh — 
 Sons shall return to their borders. 
 
 III 
 
 Truly I have heard Ephraim rocking in grief: 
 You whipped me, and I took the whipping 
 like an untrained calf; 
 bring me back that I may come back, 
 for you are Yahweh my God. 
 For after I turned away, I repented; 
 and after I came to my senses, I slapped my thigh. 
 I was ashamed, and I was confounded, 
 because I bore the disgrace of my youth. 
 
 IV 
 
 Is Ephraim my dear son? my darling child? 
 For the more I speak of him, 
 the more I do remember him. 
 Therefore, my womb trembles for him; 
 I will truly show motherly-compassion upon him. 
 Oracle of Yahweh. 
 
 V 
 
 Set up waymarks for yourself; 
 make yourself guideposts; 
 consider well the highway, 
 the road by which you went. 
 Return, O virgin Israel, 
 return to these your cities. 
 How long will you dillydally, 
 O Turnabout daughter? 
 For Yahweh has created a new thing in the land: 
 female surrounds man. (Jer. 31:11—22)' 
 
 CALLED BY STORIES 
 
The traditional translation of verse 15 is “a voice heard in Ramah.” 
 Ramah is the location of Rachel’s tomb, but its literal meaning is “on 
 high.” Trible’s translation gives a sense of Rachel’s lamentation carried 
 to the precincts of heaven.’ Trible also employs “my womb trembles for 
 him” in verse 20 rather than “I am deeply moved for him” (NSRV), or “I 
 am filled with yearning for him” (Bright), or “my bowels are troubled 
 for him” (KJV).’ Trible’s translation is consonant with the motherly 
 voice of God. The last line, “female surrounds man” or “a woman en- 
 compasses a man” (NSRV), is so obscure that John Bright, in his trans- 
 lation, places it in brackets and suggests that it might have been better 
 to leave the line blank: “Quite possibly we have here a proverbial say- 
 ing indicating something that is surprising and difficult to believe, the 
 force of which escapes us.” * 
 
 In Trible’s account, Rachel’s weeping dominates the first strophe, and 
 she is the object of God’s consolation in the second. The third shifts 
 focus from Rachel to Ephraim. And in strophe 4 the motherly voice of 
 God, lovingly concerned for Ephraim, moves the poem “from the deso- 
 late lamentation of Rachel to the redemptive compassion of God.” * The 
 final strophe, which Trible construes as the poet speaking, delivers the 
 welcome command to return home.® The child addressed has changed 
 sex: son has become daughter. 
 
 The last line Trible says, “moves between mystery and meaning.” ” 
 It is Rachel embracing her sons, God consoling Rachel and declaring 
 compassion for Ephraim, the daughter superseding the son, and God 
 creating a new thing in the land. And, Trible concludes, it is also the 
 poem itself, for in the poem’s chiasmic form women surround Ephraim.* 
 The male child Ephraim speaks in the middle of the poem. The first 
 strophe is words of a woman (Rachel’s lamentations), and the second is 
 words to a woman (God’s response to Rachel). Then comes Ephraim’s 
 strophe followed by words of a woman in strophe 4 (God as mother) 
 and words to a woman in strophe 5 (Jeremiah or God addressing vir- 
 gin Israel).? In Trible’s interpretation, the form and content of the poem 
 embody a womb containing Ephraim."° 
 
 Trible’s interpretation is creatively helpful, and I draw upon it to arrive 
 at a somewhat different reading. To me the mystery is more evident and 
 manifold than the meaning. 
 
 Rachel weeps for Ephraim, but the depths of a more universal grief 
 sound through hers. In The Gospel According to Matthew, Herod is 
 frightened by reports that the Messiah has been born, and he destroys 
 
 JEREMIAH’S RACHEL POEM 81 
 
the children of Bethlehem. The text adds: “Then was fulfilled what had 
 been spoken through the prophet Jeremiah: ‘A voice was heard in 
 Ramah, wailing and loud lamentation, Rachel weeping for her chil- 
 dren’ ” (Matt. 2:17—18). 
 
 The lamentation of Rachel for Ephraim in exile extends in time from 
 one horror to another and gathers grief for all the slaughtered children 
 of Israel. The profound, enduring, more universally enveloping quality 
 of that mother’s grief is still felt, still heard." It is one mystery of “female 
 surrounds man.” 
 
 Another is the character and effect of her grief as intercession. Trible 
 notes that to surround or encompass is also to surpass.'’* Rachel’s tears 
 may be read as surpassing. In her grave Rachel is inconsolable. Worse 
 than her death is the erasure of her children, and more powerful than 
 her death is the anguish she suffers for them. 
 
 In response, God promises to recall Ephraim from nowhere. Thereby 
 does Jeremiah invite a comparison in which Rachel’s tears surpass 
 Moses’ appeals. In an earlier passage Jeremiah remembers Moses, like 
 Samuel, as one of Israel’s greatest intercessors. Moses had successfully 
 appealed to God on behalf of the people when He would have destroyed 
 them at Mt. Sinai. But Moses could not prevent God from sending the 
 people into exile now: “Then the Lord said to me: Though Moses and 
 Samuel stood before me, yet my heart would not turn toward this 
 people. Send them out of my sight, and let them go!” (Jeremiah 15:1).’? 
 The punishment that Moses and Samuel together could not prevent, 
 Rachel’s tears will bring to an end. To this extent her tears surpass the 
 appeals of the two great male intercessors. To surround is to surpass. 
 
 This is another mystery of “female surrounds man.” '* 
 
 82 CALLED BY STORIES 
 
16. Law and Tears 
 
 Socrates would have no tears at his trial. He thought that weeping would 
 demean him and dishonor the state. To appeal with tears would be to 
 ask a favor of the judge, “thus procuring an acquittal instead of inform- 
 ing and convincing him.” ' He opposed low-level, bribing supplication: 
 If you have only a losing argument, cry. 
 
 Rachel’s powerful tears, however, do not register as less worthy than 
 argument. They do not demean either her or God and His response. 
 They outlive her death and gather sorrow too deep for words. Rachel’s 
 suffering is at once her own and that of Ephraim, at once passionate 
 and compassionate. And its expression moves God and surpasses rather 
 than sinks below Moses’ arguments. 
 
 In American courts, on a rudimentary level, the expression of emo- 
 tions like those contained in tears that touch the heart simply cannot 
 be excluded and should not be. But when a New Jersey judge ruled in 
 1845 that the state constitution did not outlaw slavery, he observed that 
 the “arguments and remarks and the pathetic appeals” addressed to the 
 court “seemed rather addressed to the feelings than to the legal intelli- 
 gence of the court.” * He thought that what counts for reason in law had 
 not been satisfied. 
 
 I do not know how this judge dressed for court or in what kind of 
 room he presided; probably, though, if modern judges and courtrooms 
 are a guide, he was costumed in a robe, situated in a dramatic space, 
 and taking part in civic theater. Some years ago, arguing the obvious, I 
 pointed out that courts are theaters and that it is good they are.’ 
 
 Fortunately, not all law is litigation, but courtroom decision making 
 is the core image of the way “legal intelligence” proceeds in our society. 
 Courts are not laboratories or study halls. Nor are lawyers, judges, and 
 jurors assemblies of scientists or logicians. Trials are theater and, like 
 all theater, appeal to the heart and the heart’s reasons as well as to the 
 mind. The New Jersey judge reported that he had “listened with great 
 pleasure and deep interest” to the proceedings before him. Doubtless he 
 had, for trial performances are almost always fascinating. The wonder is 
 that he saw no connection between “legal intelligence” and the medium 
 essential to his work as a judge, between the way lawyers are supposed 
 
to think and the emotional, artful representation and metaphor making 
 central to the enterprise. 
 
 The performances that courts produce are as important as their judg- 
 ments. They represent what we imagine a legitimate society to be and so 
 mirror our nature as a people, our better selves. That is their chief func- 
 tion as theater but not their only one. They also reconfigure aggression, 
 encourage impartiality, engender creativity in judgment, and certainly 
 serve as a medium for communication of nonverbal information. Feel- 
 ing is very much of the essence, and tears, ordinary tears, are part of the 
 order. 
 
 To maintain that law has no room for tears runs counter to their 
 patent, deliberate presence. The New Jersey judge’s inability to embrace 
 the obvious is connected to a worldview in which law is peculiarly ratio- 
 nal and unprejudiced and feeling is both vulnerable to prejudice and op- 
 posed to reason. Or—and it has been thought to say the same thing — 
 feeling is feminine, and the feminine has no place in what is essentially 
 men’s work. 
 
 These two strands of assumptions join and become explicit in a scene 
 in Herman Melville’s Billy Budd. Captain Vere has summoned a drum- 
 head court on his ship Be//ipotent to try the much loved sailor Billy for 
 killing the master-at-arms. In a kind of charge to the court, the captain 
 says that the officer-judges are not responsible for the rigor of martial 
 law but only for its administration. He adds that the exceptional case of 
 Billy Budd will move their hearts: 
 
 “But let not warm hearts betray heads that should be cool. Ashore 
 in a criminal case, will an upright judge allow himself off the bench to 
 be waylaid by some tender kinswoman of the accused seeking to touch 
 him with her tearful plea? Well, the heart here, sometimes the feminine 
 in man, is as that piteous woman, and hard though it be, she must here 
 
 be ruled out.” 4 
 
 This association of the feminine with tears and of tears with the se- 
 duction of uprightness in law echoes an ancient habit. However, one 
 caution of that past, which includes Captain Vere and Creon, is the ter- 
 rible cost of disobedience to the heart and of the exclusion of the femi- 
 nine.’ 
 
 Socrates opposed the introduction of doleful tears on his behalf at 
 trial because he believed that judges should be convinced to give judg- 
 ment and not be asked to give favors. But there is no natural, necessary 
 reason to exclude feeling as a medium for informing and convincing 
 
 84 CALLED BY STORIES 
 
judges. And there is every reason to include it in what Jeremy Bentham 
 referred to as “the theatre of justice.” ° In fact, feeling is already, undeni- 
 
 ably included. 
 
 There is a larger issue here: Tears like Rachel’s that express suffering too 
 deep for words do not demean the law, but law may be thought inade- 
 quate to them or an inappropriate medium for them. Hannah Arendt 
 held the view that law occupies a middle ground between “goodness be- 
 yond virtue and evil beyond vice.”’ Her argument does not run to so 
 simple a matter as weeping in court. 
 
 Ina reflection on Dostoyevsky’s “Grand Inquisitor” from The Broth- 
 ers Karamazov and Melville’s Billy Budd, Arendt proposed that law lies 
 within the limits of the political realm where argument, pity, and the 
 eloquence of virtue count, but passion and compassion do not. The 
 latter, she said, are antipolitical and cannot be accommodated in law. If 
 compassion attempts to remedy the causes of suffering, “it will shun the 
 drawn-out wearisome processes of persuasion, negotiation, and com- 
 promise, which are the processes of law and politics, and lend its voice 
 to the suffering itself, which must claim for swift and direct action, that 
 is, for action with the means for violence.” * 
 
 Arendt makes a good argument. Rachel nonetheless leads me to re- 
 consider it, at least to the extent of reconsidering the relation of law to 
 the kind of suffering and fellow suffering her tears express. 
 
 Like theater, which also requires distance, law occupies ground delin- 
 eated by convention and commitment. The limits change with time and 
 so does what occurs within them —the subject matter, discourse, styles 
 of performing, and what counts as performance. There are nonetheless 
 limits and discipline, however contextual, and they serve useful pur- 
 poses. They allow lawyers to reduce agreements and hopes to reliable 
 legal terms that enable enterprises to proceed. They allow lawyers to 
 reduce ordinary controversies and sometimes great social conflicts to 
 judicially cognizable, resolvable terms. And they also aid judgment and 
 the process of judgment by helping eliminate prejudice and by exclud- 
 ing from criminal trials certain kinds of evidence because it is inappro- 
 priate to the immediate performance and the larger representation we 
 would have of ourselves as a people.’ 
 
 So the limits and the discipline are appropriate, useful, and necessary, 
 although they are not fixed in permanent form. It is wrong, however, to 
 make too much of them, as though they set off a neutral zone, extend- 
 
 LAW AND TEARS 85 
 
ing only from vice to virtue, that is safe from surrounding, antipolitical 
 goodness and evil. It is wrong because it grants to law an odd, destruc- 
 tive, and unwarranted combination of necessity and immunity: Law is 
 a bulwark holding chaos at bay — aprés mot le déluge.'° 
 
 Neither the making nor the maintaining of the bulwark are free of 
 force. They claim for “action with the means of violence” no less than 
 does compassion. Their violence is legitimated violence, but it is vio- 
 lence nonetheless. American recognition of this fact began at least as 
 early as John Marshall’s observation that even ordinary tax law involves 
 the power to destroy.'' And it has been extensively elaborated in re- 
 cent years by William Stringfellow, Robert Cover, and others, myself 
 included. Law does not exclude violence. It orders violence. 
 
 Nor is the ordered territory it occupies between extremes necessarily 
 free of anarchy. Madison understood that “in a society under the forms 
 of which the stronger faction can readily unite and oppress the weaker, 
 anarchy may as truly be said to reign, as in a state of nature.” ” This an- 
 archy of law and order takes on a settled, invulnerable appearance, and 
 it is hard to penetrate, as cases both old and new demonstrate. 
 
 In a case involving the slave ship The Antelope, Chief Justice John 
 Marshall agreed that the “unnatural traffic” in slavery was “contrary to 
 the law of nature” but not contrary to the law of the Supreme Court.” 
 “Slavery . . . has its origin in force; but as the world has agreed, that it is 
 a legitimate result of force, the state of things thus produced by general 
 consent, cannot be pronounced unlawful.” '* He pronounced much the 
 same thing about American law enforced against Native Americans. It 
 was unnatural and uncivilized, “yet, if it be indispensable to that system 
 under which the country has been settled, and be adapted to the actual 
 condition of the two people, it may, perhaps, be supported by reason, 
 and certainly cannot be rejected by courts of justice.” '* That which is 
 unnatural (read “unjust”) settles into reason, law, and the not altogether 
 ironically titled system of justice. 
 
 Although such acknowledgments of unjust but lawful force are ex- 
 ceptional, its use is not. In Walker v. City of Birmingham," civil rights 
 marchers had been jailed for demonstrating against racism in defiance 
 of an injunction. The injunction enforced a city ordinance that the Court 
 suspected was unconstitutional and later held to be unconstitutional.’” 
 The Court nonetheless upheld the defendants’ conviction: An illegal 
 court order may not be tested by disobedience. The final sentence of the 
 opinion proclaimed that “respect for judicial process is a small price to 
 pay for the civilizing hand of law, which alone can give abiding mean- 
 
 86 CALLED BY STORIES 
 
ing to constitutional freedom.” * The civilizing hand of law in this in- 
 stance compounded chaos within by exacting from its victims the price 
 for holding at bay a supposed threat of chaos from without. 
 
 In McCleskey v. Kemp, a black man convicted of murder was sen- 
 tenced to die. His attorney challenged Georgia’s capital sentencing 
 scheme as racially discriminatory.” In the process of rejecting the argu- 
 ment, the Court said that “taken to its logical conclusion, [his claim] 
 throws into serious question the principles that underlie our entire crim- 
 inal justice system.” *° The very possibility that unjust force had become 
 systemic placed it beyond examination. 
 
 This is to be stupefied by force and to be used by rather than to master 
 it. The Court presents the organization and entrenchment of anarchic 
 force as either respectable or regrettably necessary and therefore irre- 
 mediable. In doing so it creates two false, irresponsible attitudes. One is 
 that law occupies a space of decency momentarily safe from the violent 
 extremes of goodness and evil. The other is that systemic evil within 
 that realm is not subject to remedy. These may be formulated as the in- 
 consistent claims: “There is no evil” and “We can’t cure it.” 
 
 The claims are un-American. Alexander Hamilton opened The Fed- 
 eralist by saying that the question before the citizenry was whether they 
 could govern their affairs through “reflection and choice, or whether 
 they are forever destined to depend for their political constitutions on 
 accident and force.” *! At the time he wrote, Americans had already 
 given good demonstration of their active determination to govern by 
 deliberation, to rule force rather than to be ruled by it. To this end they 
 had overthrown an imported legal regime and were in the process of dis- 
 carding one homemade charter, the Articles of Confederation, in favor 
 of another, the Constitution. They would soon produce a very different 
 Constitution with the civil war and at least one other between the 1920s 
 and 1960s. We have understood in our past that law is an artifact, that 
 we are responsible for it, and that, when law does not work or injustice 
 is deeply entrenched in it, we can make fundamental changes, by force 
 of arms in civil war if necessary. 
 
 Arendt said that “law, moving between crime and virtue, cannot rec- 
 ognize what is beyond it.” * But I think that it must do so if the citi- 
 zenry is to recognize law and the legal system as no more than tools to 
 be deployed responsibly. Arendt argued that “compassion abolishes the 
 distance, the worldly space between men where political matters, the 
 whole realm of human affairs, are located.” *? But it was law in the ab- 
 sence of compassion that abolished distance in the instances of slavery 
 
 LAW AND TEARS 87 
 
and the Birmingham demonstrators and that continues to diminish it in 
 the instances of Indian nations and Georgia’s practice of capital punish- 
 ment. When law’s only appeal is to itself and its power, its last resort is 
 always terminal force and not argument. And then it is self-destructive 
 because it destroys the process that is its essence and the space that is 
 its habitation. 
 
 H. L. A. Hart noted that wicked men will always use the forms of law 
 as one of their instruments. And in his view what is most needed to 
 make citizens “clear sighted in confronting the official abuse of power, 
 is that they should preserve the sense that the certification of something 
 as legally valid is not conclusive of the question[s] of obedience [and 
 submission], and that, however great the aura of majesty or authority 
 which the official system may have, its demands must in the end be sub- 
 mitted to moral scrutiny.” ** 
 
 I would clarify or extend Hart’s assessment in three particulars. First, 
 not only extraordinary confrontation of official abuse of power or ex- 
 treme crises of obedience are at issue but also ordinary participation in 
 law. Daily tending and assurance and therefore regular clarity are re- 
 quired. 
 
 Second, not only abuse of legitimacy but also legitimacy in its com- 
 mon functioning requires us to see through the aura of the official sys- 
 tem. The continuing relation between the United States and the Indian 
 Nations provides an extensive illustration of the need and difficulty of 
 discernment. Constitutional supremacy and equal protection of the law 
 are great achievements of a great people, and they have helped us grow 
 much good. But at the same time they constitute an act of aggression 
 against tribes and the life of tribes on our shared continent.” Vigilance 
 is especially necessary and especially difficult in those instances where 
 good people employ good law but with nonetheless injurious effects on 
 others who are without fault. In such circumstances we are far more 
 likely to blame the victims than to see ourselves and our law clearly. 
 
 Third, although it is certainly to be hoped that the demands of the 
 official system will always be subjected to moral scrutiny, morals, too, 
 require subjection to scrutiny. The point is quickly, memorably fixed in 
 the critical moment of The Adventures of Huck Finn. A raft bearing Huck 
 and the fugitive slave Jim floats down the Mississippi. A skiff with two 
 white men approaches. Huck detaches a canoe from the raft and paddles 
 out to meet them. He is thrown into a crisis of conscience. Law and 
 morality urge him to turn Jim in. Now is the time. But he resists. In- 
 
 88 CALLED BY STORIES 
 
stead, he lies to the boatmen. He leads them to think that his companion 
 on the raft is his pox-ridden father. They retreat quickly. Jim, undiscov- 
 ered, continues his escape. Huck says: 
 
 I got aboard the raft feeling bad and low, because I knowed very well 
 Ihad done wrong. ... Then I thought a minute, and says to myself, hold 
 on; s’pose you'd a done right and give Jim up, would you feel better 
 than you do now? No, says I, I’d feel bad —I’d feel just the same way I 
 do now. .. . So I reckoned I wouldn’t bother no more about it, but after 
 this always do whichever come handiest at the time.”° 
 
 The “handiest” is more reliable than the conscientious, where con- 
 science is instructed by no more than law and morality. Virtue, too, re- 
 quires critical scrutiny. 
 
 Supplication—and that is what God takes Rachel’s weeping to be— 
 transcends both law and morality and in doing so provides occasion for 
 their needed testing. A powerless supplicant places the powerful sup- 
 plicated in the role of recipient and puts him to trial. As Paul Valliere 
 observes, the supplicated speak for themselves and their power. Suppli- 
 cants, on the other hand, do not speak mainly for themselves and in- 
 stead invoke a higher reality. In Arendt’s terms, compassion gives voice 
 to suffering and invokes goodness beyond virtue. “It is this prophetic 
 power of supplication,” Valliere says, “that establishes the dialectic of 
 power and powerlessness, thus putting the whole question of power into 
 a new perspective. Supplication is historical action which bears witness 
 to social and political theonomy.” *’ This is not victim politics, not an 
 appeal to pity, generosity, or guilt. Rather, it is the dialectic of power 
 and powerlessness that summons a beyond that can recall power from its 
 self-destruction. It is thus action undertaken on behalf of the powerful 
 as well as the powerless. 
 
 Some degree of self-transcendence, of recognizing the beyond and 
 being drawn after it, belongs to law. For example, one purpose of the re- 
 ductive, theatrical discipline of trials is to evoke from jurors and judges 
 a willing suspension of disbelief in their own civility. It thereby draws 
 them into performing their better parts as citizens who have put aside 
 prejudice and personal interest in making judgments about each other. 
 Such acting beyond themselves that courtroom law encourages among 
 jurors and judges, constitutional law encourages the citizenry as a whole 
 to perform. 
 
 Law helps draw us out in this way. It suits such self-transcendence for 
 law to acknowledge its limits and point beyond itself.?* Law then gives 
 
 LAW AND TEARS 89 
 
us reason to take responsibility for governing our affairs, including law 
 and force, and hope for guidance in doing so from beyond law. 
 
 I would therefore develop forms that allow us to hear in law tears like 
 Rachel’s invoking what is beyond law: the potential of silences shaped 
 by the wordiness of law but also the possibilities of what is said, written, 
 and done in law. The bitter sorrow of families sometimes finds expres- 
 sion in divorce proceedings. The suffering of the innocent and the guilty 
 alike is to be heard at times in criminal trials, war crimes tribunals, and 
 the making of peace treaties. And the lamentations of the enslaved and 
 of those who suffered to end their enslavement may still be heard in the 
 post—Civil War amendments, although the sound of them is the more 
 muffled the more the Supreme Court covers the amendments with little 
 rules and with nice arguments about standards of judicial review. 
 
 Fran Ansley’s work on plant relocations and the International Peo- 
 ple’s Tribunal in Hawai‘i in 1993 are extended examples of tears brought 
 to law. 
 
 Fran, who has a substantial history as a practitioner, is now a professor 
 at the University of Tennessee’s School of Law in Knoxville. As plants 
 close in east Tennessee, jobs are lost, and women are hurt. In an attempt 
 to understand what is happening around her, Fran has become a student 
 of deindustrialization and globalization, of the particulars of temporary 
 employment, the failures of job retraining, the nature of industrial re- 
 cruitment, sustainable development, environmental impacts, interna- 
 tional politics and economics, and transnational investment.” 
 
 Her journey from law into alien territories of the academy inhabited 
 by experts in the relevant subjects is emblematic of other frontier cross- 
 ings her effort has required. She crossed social boundaries in order to 
 find the women most affected by the plant closings and to learn from 
 them about the realities of their experience.*® And then she was led to 
 cross the border between the United States and Mexico. 
 
 Plants were closing in east Tennessee not because they were going 
 out of business but because they were going to the maquiladora re- 
 gion of Mexico.’ Women in the Knoxville area wanted to have a look at 
 the Mexican women now at work in their former jobs— “those people,” 
 the enemy, who seemed “so ready to snatch away American jobs on the 
 slightest excuse.” ** Fran helped make the wish become reality in a 1991 
 exchange of visits between women from the maquiladora zone and from 
 east Tennessee.”? 
 
 The Mexicans made the first trip. Their stories of the maquiladoras 
 
 90 CALLED BY STORIES 
 
where they worked and the colonias where they lived combined with 
 the ritual of sharing family pictures to disarm the audience in Tennes- 
 see and inaugurate an appreciative exploration of commonalities and 
 differences between the foreigners from Mexico and the outsiders in 
 America.** 
 
 When the Tennesseeans made the return visit to Matamoros, across 
 the border from Brownsville, Texas, they were struck by the scale of 
 investment shifted south and the form it had taken in huge, gleaming 
 new factories enclosing “acres of young, quick workers.” *” The fac- 
 tories were surrounded by well-watered, manicured lawns, but what 
 the visitors found when they arrived at the nearby colonias resembled 
 “an aerial bomb site.” ** Some of the American women had known ex- 
 tremely harsh circumstances themselves. They were nonetheless stag- 
 gered by the shock of the living conditions of the Mexican women who 
 were working full-time for the prosperous corporations: “One-room 
 houses overflowing with people, suffocating summer heat filling the 
 boxes where mothers fanned their sweating babies, stagnant pools of 
 water with scum and garbage right next to where people were living, 
 drainpipes carrying toxic industrial waste into ditches that ran through 
 neighborhoods, bare feet, sick animals, horrible smells, open sores.” *” 
 
 The Tennesseans felt a “horrified distance” from what they saw, but 
 they also felt “the possibilities of connection” with the people they met 
 who were struggling to build a life in the colonias and whose intelli- 
 
 38 6 
 
 gence, determination, and dignity moved them.’* “More than once,” 
 
 Fran reports, “we had to compose ourselves and try to stop crying be- 
 fore we could go on.” ” 
 
 They recognized shared circumstances. Both the Mexicans and the 
 Americans wanted the jobs. Both also favored increased trade between 
 the two countries. And both were hurt by a “system that pits workers 
 against each other on the basis of which one can be forced to take the 
 lowest wage.” *° The powers arrayed against the women on both sides of 
 
 ce 
 
 the border appear overwhelming: “ ‘And you think, one of the Mexican 
 women said, “What can I do against something so big and so rich and 
 so powerful as that shiny new plant full of shiny new machines?’ ” *! 
 Near the end of the visit, the Mexican hosts provided a supper on the 
 beach— homemade food and a huge fish purchased from a boat along 
 the way. There was singing, and there were silences, and the sharing of 
 painful tears and memories of painful tears. But tears shed beside the 
 Gulf of Mexico were not enough, one of the hosts said: “We workers 
 
 here in Mexico in the maquilas, we need the help of people in the United 
 
 LAW AND TEARS QI 
 
States to make our voices heard. . . . we must remember what the fac- 
 tory owners forgot: we must remember what we have in common. That 
 we are all children of God.” *” 
 
 Fran and her colleagues have tried to give expression to the suffering 
 and compassion of the women on both sides of the border. They have 
 tried personal appearances, news interviews, public broadcasting pre- 
 sentations, organizing efforts, continued exchanges, and a play.” 
 
 They have also tried law. Fran’s legal scholarship identifies and de- 
 scribes the vast forces at work and provides an opportunity to tell por- 
 tions of the women’s stories in law reviews.** And she and her col- 
 leagues offered testimony in hearings held on the North American Free 
 Trade Agreement (NAFTA). 
 
 Workers and communities presently have little legal leverage on plant 
 closings in the United States, on the transfer of production to Mexico, or 
 on working and living conditions there.** Although extensive, sophis- 
 ticated legal arrangements had to be put in place to create and main- 
 tain the maquiladora system, law imposes almost no restraints on cor- 
 porations that reject responsibility for the workers they leave behind 
 or those they will use next.*” “Large business enterprises are increas- 
 ingly ‘free’ ” Fran observes, “while workers and communities are in- 
 creasingly stuck.” ** 
 
 The NaFTA hearings are symbolic of the scant purchase the women’s 
 suffering has in law. The women of Tennessee told their stories and those 
 of their Mexican sisters during hearings held at a time and place and 
 under conditions that made it almost impossible for affected workers 
 to participate. When Fran and her colleagues managed to appear, they 
 found that the presiding officials lacked both decision-making authority 
 and knowledge of the subject matter. The chairman said the witnesses’ 
 concerns would be passed on to relevant parties, but there was no way 
 to monitor the trade agreement process of negotiation.” “For some of 
 us present,” Fran writes, “it seemed at times that questions, challenges, 
 protests, and compliments alike were dropping quietly into... ahole.” *° 
 
 Fran is convinced that the necessary social change does not come 
 “about through skillful engineering, guided from above by intelligent, 
 highly trained policy wonks possessed of savvy, brains, and even heart” 
 but through social struggle in which those without other resources must 
 resort to “mass mobilization and social disruption of various kinds and 
 at various levels.” *' She notes that such actions are “legal” in that they 
 
 9952 
 
 are “mediated . . . by the surrounding legal rules” ” and constitute at- 
 
 92 CALLED BY STORIES 
 
tempts to invoke the power of the state. They seek limitation of indus- 
 tries’ freedom to withdraw major productive resources, and they seek 
 expansion of worker and community freedom to participate in relevant 
 decisions affecting those resources. 
 
 There has been little or no response to these appeals. I surmise that 
 they are tears refusing to be denied expression in law. They are more 
 complex than what Aeschylus called “tears for the rule of wrong,” for 
 they are shed also for the rule of the partially right.”’ 
 
 The International People’s Tribunal was convened in 1993 under the 
 sponsorship of more than one hundred Hawaiian groups and citizens’ 
 associations dedicated in one way or another to the sovereignty of the 
 islands’ indigenous people, the Kanaka Maoli. Kekuni Blaisdell, a dis- 
 tinguished physician and leader, was the moving spirit behind the tri- 
 bunal. 
 
 The history of such tribunals begins with the war crimes trials that 
 followed World War II, especially the Nuremberg trials but also the 
 trials in Tokyo. The victorious Allies agreed that punishment was nec- 
 essary, but they had to decide how to administer it. They could have 
 chosen executive or military action but instead chose trials and so gave 
 their exercise of power the cover of law. 
 
 The trials set a precedent for expressing and enforcing principles to 
 govern international war crimes, and it was not long before opponents 
 of the Vietnam War invoked the precedent.”* In 1967, for example, Bert- 
 rand Russell convened a tribunal in Stockholm to consider whether U.S. 
 actions against Vietnam constituted violations of international law.” 
 Robert Cover observed that “it is an irony of the history of this age that 
 Nuremberg — an act often characterized as a fig leaf for naked power— 
 [engendered] the attempt to empower the fig leaf standing alone.” ”° 
 
 Lord Russell’s fig leaf was not backed by state force and did not pre- 
 tend that it was, but it, too, had precedential power. It spawned calls for 
 various other tribunals to sit in judgment of states and governmental 
 institutions accused of large-scale abuses of fundamental rights. A 
 number of such tribunals have been convened. Among them were an 
 International Tribunal on the Rights of Indigenous People held in Rot- 
 terdam in 1980 and a similar one held in San Francisco in 1992 that 
 focused specifically on such rights under the U.S. government.”” 
 
 The International People’s Tribunal in Hawai‘i falls within this tradi- 
 tion. It took place August 13-20, 1993, to hear charges that the United 
 
 LAW AND TEARS 93 
 
States had committed fundamental wrongs against the Kanaka Maoli. 
 I was asked to sit as a judge alongside eight others. We came from six 
 nations and a variety of backgrounds. 
 
 As we construed them, there were five charges: that the United States 
 had interfered in the internal affairs of the sovereign nation of the Ka- 
 naka Maoli; that in 1893 the United States had aided and abetted a coup 
 d’état against the nation’s legitimate government headed by Queen 
 Lili‘uokalani and then wrongfully annexed the territory; that the United 
 States imposed statehood on the territory without the consent of the 
 Kanaka Maoli; that the United States, its corporations, and its citizens 
 have appropriated the Kanaka Maoli’s land and resources and imposed 
 economic colonization on them; and that the United States has com- 
 mitted acts of genocide against the Kanaka Maoli. 
 
 The tribunal received testimony in sessions that were held at numer- 
 ous sites around the islands and were attended by great ceremony and 
 generosity. Along the way we accumulated a vast amount of oral, writ- 
 ten, and physical evidence. We had videotapes of the testimony that we 
 heard and testimony that time did not allow us to hear. So many people 
 appeared that we could not accommodate everyone, even though we 
 worked from very early in the morning until very late at night, sleeping 
 little or not at all. 
 
 We found that the offered evidence supported the claims made. I have 
 included an edited version of the tribunal’s findings and recommenda- 
 tions as an appendix to this book. It was not put in final form and dis- 
 tributed until 1995 and has not been published before. (The materials 
 that follow are based upon that document and its underlying sources.) 
 
 Testimony repeatedly and movingly referred to the overthrow of the 
 government and the confiscation of the people’s land, resources, and 
 life. 
 
 Witnesses spoke about Queen Lili‘uokalani with deep feeling. Her 
 goodness and the wrong done to her and to the people by the U.S. usur- 
 pation of their government are vividly remembered. Subsequent to the 
 tribunal and unrelated to it, the United States admitted the illegality of 
 its action and apologized to the native people.** The apology had no 
 binding legal effect and led to no meaningful redress.” 
 
 The loss of land began before the seizure of the government and has 
 continued. Beginning in the nineteenth century, American citizens, 
 with the direct or indirect support of the U.S. government, destroyed 
 the indigenous land tenure system. They did so primarily through the 
 Western legal concept and practice of property. A few nonnatives then 
 
 94 CALLED BY STORIES 
 
took over the bulk of the land. By the 1960s, seventy-two private own- 
 ers held 47 percent of the land, and state and federal governments held 
 49 percent. Since then, land ownership has been more widely dispersed, 
 but without effect on Kanaka Maoli holdings. 
 
 One subject of frequent testimony about land was 200,000 acres that 
 the United States placed in trust in 1921 for Kanaka Maoli homesteading 
 throughout the islands. These trust lands constitute a promise abused. 
 The acreage set aside was drawn from some of the worst in the archi- 
 pelago— “remote, inaccessible, arid, and unsuitable for productive de- 
 velopment.” A helicopter flight along the coast of Maui provided a clear 
 image. We saw lush plantations in the highlands and lush resorts far 
 below them along the sea. The two were separated by extensive, barren 
 hillsides where sandalwood once grew. The plantations and resorts are 
 mostly owned by large transnational corporations. The land between is 
 Kanaka Maoli homelands. 
 
 Plantations produce cash crops alien to Hawai‘i: 200,000 acres de- 
 voted to sugar cane, 130,000 for pineapple and other crops. The staples 
 of the Kanaka Maoli diet are poi and fish. Poi is made from taro roots. By 
 1991 only 310 acres of land remained under taro cultivation. Fresh water 
 is limited. Water for taro has been diverted to the agribusiness planta- 
 tions. Hawai‘i grows the only irrigated sugarcane in the world. 
 
 Water is also diverted to coastal resorts. In 1992 there were 65 eigh- 
 teen-hole golf courses among the islands, with state encouragement to 
 build 102 more. Each course occupies 150-200 acres of land and con- 
 suMES 500,000 to 1,000,000 gallons of water per day. We visited a golf 
 course under construction among the coastal dunes on Maui where bull- 
 dozers ravaged a sacred burial site of the Kanaka Maoli. 
 
 Run-off from the plantations and golf courses together with devel- 
 opment along the coast is devastating the fisheries. Of one hundred fish 
 ponds on O*ahu in 1901, only two remained in 1993. 
 
 In addition to their sterility and inaccessibility, the lands set aside for 
 Kanaka Maoli homesteading are available only to people who can prove 
 that they are of at least 5o percent Hawaiian blood. This test of Kanaka 
 Maoli membership was imposed by the U.S. Congress. The people did 
 not define themselves this way. Those who likely qualify under the stan- 
 dard often find it impossible to produce the paper records required. No 
 written records ever existed. Such things were alien to the society. While 
 the Kanaka Maoli presently constitute some two hundred thousand of 
 the islands’ population of one million, only five thousand have met the 
 imposed standard. If there are no more than the five thousand qualified 
 
 LAW AND TEARS 95 
 
so far, their number is likely to dwindle to zero by the middle of the 
 twenty-first century. 
 
 Even for those who qualify, distribution of the homelands remains a 
 well-documented scandal. Only 17.5 percent of the land has been placed 
 in the hands of homesteaders, despite a waiting list of twenty thousand 
 applicants, some of whom have been waiting for thirty years and more. 
 Over 62 percent is now used by nonnatives, often for minimal compen- 
 sation to the trust. The U.S. government pays virtually no compensa- 
 tion for the homelands it occupies. Those Kanaka Maoli who make un- 
 authorized use of their homelands are jailed as squatters, and bulldozers 
 destroy their houses, cultural centers, and gardens. 
 
 The pauperization of the Kanaka Maoli and their loss of land and tra- 
 ditional food has subjected them to serious illness. Indigenous people 
 make up 20 percent of the population but account for 44 percent of in- 
 fant mortality and over 30 percent of deaths from heart disease. Their 
 rate of death from cancer is more than double that of the rest of the 
 population. 
 
 Witnesses told of the destruction and attempted destruction of their 
 language, law, culture, religion, dignity, and way of life, as well as the 
 seizure of their government and resources. The evidence they offered in- 
 cluded stories, documents, objects, histories, studies by experts, rituals, 
 music, dances, and songs. Testimony was sometimes accompanied by 
 great, rollicking good humor. More often it was punctuated by tears and 
 painful, heaving silences when the burden of speaking terrible things 
 became too great. 
 
 Evidence supported the claim that over an extended period the Ka- 
 naka Maoli sought in good faith to obtain redress through state and fed- 
 eral courts. Redress was not forthcoming. Despite the nonresponsive- 
 ness of the courts, the people continue in the hope that their story can 
 be effectively articulated in legal terms. In this hope they convened the 
 tribunal. I suspect that they were encouraged to do so by the convic- 
 tion that their cause is just, by the dignity of their suffering, and by pride 
 in their own, subtle law that has been unrecognized as law by the colo- 
 nizing powers. I think that they were encouraged, too, by the hope that 
 they will one day find a language that will work in the Western world. 
 
 A documentary video of the proceedings produced by a native film 
 company captures the tears.® I hear them also in the tribunal’s opin- 
 ion —in the fact of it and in what it says and leaves unsaid. But my hear- 
 ing them may be a function of memory and not of what the pages of the 
 opinion offer to others. The opinion is a considered judgment about the 
 
 96 CALLED BY STORIES 
 
evidence presented. Although the judges included a Japanese novelist, 
 a Korean theologian, a Maori attorney, a Palestinian attorney, a Cree at- 
 torney, and a Cherokee rapporteur, our joint product is easily recogniz- 
 able as cast in legal discourse familiar in the United States. 
 
 Because the language of law is a language of careful if protracting use, 
 the tears sound, if they sound at all, in the opinion’s details: the struc- 
 ture, the findings of fact, the findings of law, the shaping of precedent, 
 the shaping of silences and blank spaces. 
 
 As I stood in an airport line with my wife, June, waiting for a return 
 flight home after the tribunal, both of us exhausted, I thought about the 
 conclusion to Black Elk Speaks. Black Elk had witnessed the slaugh- 
 ter of Indians conducted by American troops at Wounded Knee. One 
 U.S. official saw a positive lesson in the massacre: It had taught the Indi- 
 ans that it is dangerous to oppose “the law of the Great Father.” *' Black 
 Elk saw something very different, something he had not seen before: an 
 enemy who would stop at nothing. Late in life Black Elk recounted the 
 episode for John Neihardt and concluded: 
 
 I did not know then how much was ended. When I look back now 
 from this high hill of my old age, I can still see the butchered women 
 and children lying heaped and scattered all along the crooked gulch as 
 plain as when I saw them with eyes still young. And I can see that some- 
 thing else died there in the bloody mud, and was buried in the blizzard. 
 A people’s dream died there. It was a beautiful dream. . . . [T]he nation’s 
 hoop is broken and scattered. There is no center any longer, and the 
 sacred tree is dead. 
 
 Shortly after, in a trip Neihardt recorded, Black Elk returned to Har- 
 ney Peak in the Black Hills. It had been central in his early vision. There 
 he invoked the Great Spirit: 
 
 “Hear me, not for myself, but for my people; I am old. Hear me that 
 they may once more go back into the sacred hoop and find the good red 
 road, the shielding tree!” 
 
 We who listened now noted thin clouds had gathered about us. A 
 scant chill rain began to fall and there was low, muttering thunder with- 
 out lightning. With tears running down his cheeks, the old man raised 
 his voice to a thin high wail, and chanted: “In sorrow I am sending a 
 feeble voice, O Six Powers of the World. Hear me in my sorrow, for I 
 may never call again. O make my people live!” 
 
 LAW AND TEARS 97 
 
For some minutes the old man stood silent, with face uplifted, weep- 
 ing in the drizzling rain. 
 In a little while the sky was clear again.® 
 
 The Kanaka Maoli and Native Americans have similar relations with 
 the United States. Waiting to board the plane, I wondered whether the 
 tribunal would generate anything more than a little sympathetic rain on 
 the islands, if that much. I reckoned that it would not. 
 
 Fran Ansley believed that the words she and her colleagues offered 
 at the NAFTA hearings dropped into a quiet hole. Insofar as an audi- 
 ence beyond the Kanaka Maoli is concerned, I have much the same feel- 
 ing about the tribunal’s judgment and the artful video documentary as 
 well. Nevertheless, I am unsure that the NaFTA and tribunal testimony 
 failed.°* 
 
 Fran and the tribunal judges were asked to give voice to suffering 
 and compassion in the language of law. We were asked to employ law 
 as a medium of supplication. However poorly or well we expressed the 
 people’s words, tears, and silences, our action places the powerful who 
 are supplicated in the role of recipients. It would put them to trial as 
 a form of service to them as well as the powerless. That the tribunal’s 
 work was a nonevent for the United States may itself usefully highlight 
 the limits of American law and point beyond them. 
 
 Among the Kanaka Maoli, the tribunal was not without effect. Many 
 who came to our sessions heard each other’s stories and the full recount- 
 ing of their history for the first time, and they understood that they 
 were not alone. One judge, Te Moana Nui A Kiwi Jackson, director of 
 Maori Legal Services in Wellington, New Zealand, pointed out to me 
 that colonialism destroys the ability to make connections of many kinds 
 and that our proceedings had provided occasion not only for restoring 
 connections between the individual stories but also for conceptualiz- 
 ing them. The common stories could be conceived as connected to law, 
 international norms, and broader meaning. 
 
 The Kanaka Maoli had found themselves and the validity of their way 
 of life affirmed in some way. I expect that the same was true for the 
 women of east Tennessee. 
 
 98 CALLED BY STORIES 
 
17. The Womb of God and Tears 
 
 What I have said about compassion in law raises a theological ques- 
 tion. If supplication invokes a beyond, how can we explain the effect of 
 Rachel’s weeping? There is no goodness greater than God to summon. 
 Neither her lamentations nor Moses’ Sinai intercessions can be read as 
 animating God to perform the role of greater or better God. They can be 
 read as appealing from a God the just to a God the merciful, but only if 
 justice and mercy are read as opposites in a divine personality that can 
 be switched from one to the other by sufficient human intervention. 
 
 I think that there is another possibility indicated by a further mystery 
 of “female surrounds man,” the image struck by the last line of Jere- 
 miah’s Rachel poem: God surrounds the human as the life-giving womb 
 surrounds the fetus. In John Calvin’s terms from the beginning of his 
 Institutes, “our existence is nothing but a subsistence in God alone.”' 
 There is and is not distance between the two, is and is not the immediacy 
 of compassion, is and is not room for politics and persuasion. 
 
 Within the womb of God, people live, move, have their being, and 
 speak. Robert Alter refers to the “quintessential biblical notion” of a 
 “nexus of speech that binds man and God.” The sense of Jeremiah’s 
 poem is that this nexus of speech is umbilical. The word of God supplies 
 voice to Rachel no less than Moses so that her tears, like his intercession, 
 are a return within the uterine circulation of expression. On this reading, 
 a God the just does not switch to a God the merciful in response to what 
 He hears. Rather He is who He is in the mystery of God the mother. I 
 return to the poem: 
 
 15. Thus says the Lord: 
 A voice on a height! 
 Lamentation can be heard, 
 Weeping most bitter. 
 Rachel is weeping for her sons, 
 Refusing to be consoled for her sons 
 “Oh, not one here!” 
 
7a 
 
 18. 
 
 20. 
 
 21. 
 
 100 
 
 II 
 
 . Thus says the Lord: 
 
 Keep your voice from weeping 
 and your eyes from tears. 
 For there is a reward for your work — 
 oracle of Yahweh— 
 They shall return from the land of the enemy. 
 And there is a hope for your future — 
 oracle of Yahweh — 
 Sons shall return to their borders. 
 
 Ill 
 
 Truly I have heard Ephraim rocking in grief: 
 You whipped me, and I took the whipping 
 like an untrained calf; 
 bring me back that I may come back, 
 for you are Yahweh my God. 
 For after I turned away, I repented; 
 and after I came to my senses, I slapped my thigh. 
 I was ashamed, and I was confounded, 
 because I bore the disgrace of my youth. 
 
 IV 
 
 Is Ephraim my dear son? my darling child? 
 For the more I speak of him, 
 the more I do remember him. 
 Therefore, my womb trembles for him; 
 I will truly show motherly-compassion upon him. 
 Oracle of Yahweh. 
 
 Vv 
 
 Set up waymarks for yourself; 
 make yourself guideposts; 
 consider well the highway, 
 the road by which you went. 
 Return, O virgin Israel, 
 return to these your cities. 
 
 CALLED BY STORIES 
 
22. How long will you dillydally, 
 O Turnabout daughter? 
 For Yahweh has created a new thing in the land: 
 female surrounds man. 
 
 In the first strophe Rachel weeps, and in the second God responds 
 with the promise of her children’s return. In the third, her child groans 
 with repentance, and in the fourth God responds with the promise of 
 mercy. This pattern of human call and divine response is transformed in 
 the last strophe, which may be the voice of the poet, as Trible suggests, 
 or may be the voice of God. The two are not distinguished, just as there 
 is now no distinction between what God commands and what Israel 
 most seeks. The command: “Return to these your cities” is exactly what 
 Israel hopes to do. The command is an answer to their prayers. There 
 remains only Israel’s performance: “How long will you dillydally?” 
 
 Between God’s promising command and its fulfillment lies a time of 
 waiting. (Is it a period of gestation?) Between “Let there be light” and 
 there being light, between the now of the poem and the future of the 
 return, between the uttering of the word and its performance, lies the 
 hard time of history when the turnabout dillydallies. 
 
 For this meantime or at its completion or both, there is a new cre- 
 ation. In the old creation “God created humankind in his image, in the 
 image of God he created them; male and female he created them” (Gen. 
 1:27). In the new creation, too, male and female point to God, but now 
 the Genesis image of God in the parity of the sexes yields to a new one: 
 “female surrounds man.” This colon points to God by concentrating the 
 womanly mood, voice, and imagery of the poem as a whole. 
 
 Other poems within the Book of Consolation in Jeremiah make use of 
 male identifiers. In one, God is “a father to Israel, and Ephraim is my 
 firstborn” (31:9). In another He is “husband” to both kingdoms (31:32). 
 But a monopoly of male metaphors would be insufficiently expressive, 
 and Jeremiah turns to labor pains as a figure for intense human suffer- 
 ing.’ The first poem in the Book of Consolation provides a complex ex- 
 ample of such usage: 
 
 Thus says the Lord: 
 
 We have heard a cry of panic, 
 of terror and no peace. 
 
 THE WOMB OF GOD AND TEARS IOI 
 
Ask now, and see, 
 can a man bear a child? 
 Why then do I see every man 
 with his hands on his loins like a 
 woman in labor? 
 Why has every face turned pale? 
 Alas! that day is so great 
 there is none like it; 
 it is a time of distress for Jacob; 
 yet he shall be rescued from it. 
 
 (Jer. 30:5-7) 
 
 In this poem, to say that men will suffer the pains of a labor known 
 only to women is to express how extraordinary will be the event that 
 lies ahead. In the Rachel poem, to speak of God’s trembling womb is to 
 indicate a mystery of God that lies beyond. 
 
 When the Rachel poem, following familiar biblical practice, describes 
 God as hearing and remembering, it conveys a close, responsive link be- 
 tween God and the one heard or remembered. (In Exodus, God sends 
 Moses to the enslaved Israelites because He hears them and remem- 
 bers his covenant with Abraham.) The creative good sense of translat- 
 ing strophe 4 as Trible does is to connect God’s remembering Ephraim 
 with God’s womb trembling for him. The pregnant woman feels the fe- 
 tus moving. (Whose movement is it?) Breast-feeding follows delivery. 
 Neither the severing of the umbilical cord nor the weaning of the child 
 ends the singular, life-giving attachment. The mother’s feeling for the 
 child emanates from the core of her being, continues throughout her 
 life and, in Rachel’s case, after death. The womb and the sympathetic 
 trembling of the womb serve the poem’s language about God as no male 
 image can. 
 
 Israel has been scattered among other nations but has never been 
 so far removed as to escape the embrace of either Rachel’s sorrow or 
 God’s compassionate memory. And now the great ingathering will 
 commence. Female surrounds man. 
 
 Trible notes, and I call particular attention to, the Hebrew word suy, 
 turn or return.‘ It occurs twice in the second strophe (“They shall re- 
 turn”; “Sons shall return”).To return to the land is also to return to God. 
 Suv is used three times in the next strophe, twice with the geographi- 
 cal /theological meaning (“bring me back that I may come back”), and 
 
 102 CALLED BY STORIES 
 
once with the connotation of apostasy (“I turned away”). This same 
 sequence of meanings is repeated in the final strophe (“Return, O virgin 
 Israel”; “return to these your cities”; “Turnabout daughter”).’ “Return” 
 becomes — turns into— “surround” in the last line. And the “Turnabout 
 daughter” of the first half of the verse is newly created in the last as 
 “female surrounds man.” ° 
 
 The word suy highlights and belongs to a cycle. Rachel’s tears go up 
 to heaven and do not return empty. They precipitate God’s promise that 
 Israel will return to the land. The pattern is then repeated. Ephraim’s 
 grief is heard in heaven and returns as God’s promise of motherly com- 
 passion. In this pattern God is not inactive, for Rachel does not shape 
 her flood of sorrow into a petition. She cannot. It is too deep for words. 
 When God hears her weeping, He actively translates the sound as sup- 
 plication, and He responds. When He hears Ephraim’s words of repen- 
 tance, He translates them, too, into a plea by Ephraim to be brought 
 back, and He responds. God’s active hearing and the general responses 
 He makes to Rachel and Ephraim become specific, active command in 
 the last strophe: “Set up waymarks for yourself. . . . return to these your 
 cities.” 
 
 God seems to have been roused to action by the calls of Rachel and 
 Ephraim. They appear to be the moving parties. Word goes up and cycles 
 back to earth as a promising command that waits only to be fulfilled. 
 This is the reverse of rain and snow coming down from heaven.’ 
 
 However, the poem is careful to preserve the mystery of the origi- 
 nal cycle that begins with the word of God. It does not directly present 
 Rachel weeping and Ephraim pleading. In the poem only God speaks. 
 What he utters is hearsay. The voices of Rachel and Ephraim in the 
 poem are God saying what He has heard from them. The word of God 
 enwraps the poem.* The poem begins with the formula: “Thus says the 
 Lord.” Rachel’s weeping is said by God. Ephraim’s words in the third 
 strophe are God’s declaration of what He “heard Ephraim pleading.” 
 With the possible exception of the last strophe, which may be either the 
 voice of God or the poet, the entire poem is presented as the words of 
 God. 
 
 Rachel’s weeping is distinctively and genuinely hers. What we and the 
 Gospel of Matthew (2:18) remember is Rachel and her tears, not God’s 
 reporting them. Their effect, too, is her achievement. And yet, in the 
 poem, they are the word of God. 
 
 Similarly, Ephraim’s pleading and repentance are his, and so are their 
 effects. And yet they, too, are the word of God in substance as well as 
 
 THE WOMB OF GOD AND TEARS 103 
 
form. Trible notes about Ephraim’s plea “bring me back that I may come 
 back” that “theologically the repentance of Ephraim is an act of God,” 
 and “geographically, the return of Ephraim is the work of God.”” Both 
 acts, like the words, are Ephraim’s and also God’s. 
 
 God’s word gives voice to Rachel and Ephraim, and He is moved 
 by the voices he hears in return. The uterine figuration of the poem 
 and its colon point to this mystery. The womb surrounds and gives life 
 to the child exactly that he should be an other, but neither the sepa- 
 ration of birth nor the coming of age and independence of the child 
 end the womb’s trembling for him. Nor do apostasy, exile, and death 
 end the mother’s compassionate embrace. Rachel continues to weep for 
 Ephraim. Her loaded tears from the grave along the way and his plead- 
 ing in exile issue from the word of God that surrounds them. God cannot 
 speak of Rachel and Ephraim except to give them voice and so hear her 
 and remember him with motherly love. He gives voice and response to 
 the weeping of Rachel that his hearing raises from her grave. “Female 
 surrounds man.” 
 
 The poem performs a final knotting of the mystery that exactly enacts 
 the dialectic and wonder of the word of God surrounding and enabling 
 the human voice. Rachel weeps, but her weeping in the poem is God’s 
 utterance; the entire poem is what He says. Even so, God’s speaking 
 in the poem is the writing of the poet. It is God’s word and the poet’s 
 work, and equally the poet’s word and God’s work, in the same way that 
 Moses’ entreaties are both his intercessions and God’s words and in the 
 same way that God both stands over against Israel and shares enabling 
 
 '0 “Female surrounds man.” 
 
 identity with her. 
 God repeatedly says that His people are to be holy, for He is holy. To be 
 holy is to be set apart and never completely settled. This is true for the 
 people as a whole and particularly true for those who represent Israel to 
 God: the closer to Him, the more separate from others. 
 
 How terrible this is for Rachel. She lies forever lonely and suffering 
 in her grave along the way in order that, from there, she may be mov- 
 ingly close to God. What has God done to her? What does He require? 
 And yet: What has God not suffered with her? The suffering of God the 
 mother encompasses the suffering of Rachel’s grief and gives it expres- 
 sion. 
 
 Perhaps we can say something similar about Miriam. She, too, is 
 buried along the way. Earlier, God had unfairly ordered her out of the 
 
 104 CALLED BY STORIES 
 
camp. But Katherine Doob Sakenfeld says that the larger biblical tra- 
 dition presents God as the one “who stands close to and defends those 
 on the ‘outside.’ . . . Miriam outside the camp may point us not only to 
 the painful arbitrariness of her situation but also, however indirectly and 
 allusively, to the suffering of God.”" 
 
 Perhaps, too, we can then say that Moses’ consignment to an un- 
 known grave outside the promised land is not unique. It is a sign of 
 proximity to God. The mystery is that, in death and separation, he, 
 Rachel, and Miriam are adjoined and lie within the womb of God. 
 
 THE WOMB OF GOD AND TEARS 105 
 

 
III 
 
 The Gospel According to John 
 
 In the stories of Moses, God is characteristically present as word. The 
 word is powerful, dangerous, consuming. In order not to destroy his 
 people by His presence, God places Himself in their midst by law and 
 the mouth of Moses. 
 
 In The Gospel According to John, the Word has become flesh. That is 
 how God now places Himself —encamps—among His people. John is 
 steeped in the Jewish tradition. In the gospel’s language, imagery, and 
 associations, Moses is everywhere at hand, and so is law.' As I came to 
 understand in working on this chapter, law is a primary medium for the 
 gospel, and John’s freedom to employ it is a gift with liberating conse- 
 
 quences for the reader. 
 

 
18. The Jerusalem Trial 
 
 The received symbol for the Gospel of John is the eagle. This is so not 
 because people associated with law are bound to be birds of prey but 
 because of the gospel’s elevated theology and language. It opens with a 
 majestic prologue: 
 
 1 In the beginning was the Word, 
 and the Word was with God, 
 and the Word was God. 
 
 He was in the beginning with God. 
 
 N 
 
 All things came into being through him, 
 
 Ww 
 
 and without him not one thing came into being 
 that has come into being. 
 
 In him was life, 
 and the life was the light of mankind. 
 
 And the light shines in the darkness, 
 
 aN 
 
 ~~ 
 
 and the darkness did not overcome it. 
 
 nN 
 
 There was sent by God a man named John. 
 He came as a witness 
 
 “I 
 
 to testify to the light 
 that all might believe through him; 
 to testify to the light 
 
 co 
 
 for He was not himself the light. 
 The true light which enlightens every man 
 
 SS) 
 
 was coming into the world. 
 
 to He was in the world, 
 and the world was made by him; 
 and the world knew him not. 
 
 11 He came to his own; 
 
 = 
 
 and his own received him not. 
 12 But all who did receive him 
 he empowered to become children of God: 
 those who believe in his name, 
 13 those who were begotten, 
 not by blood or the will of the flesh or the will of man, 
 but by God. 
 
14 And the Word became flesh, 
 and dwelt among us. 
 And we have seen his glory, 
 the glory of an only Son from the Father, 
 full of grace and truth. 
 
 15 John testified to him and cried out: 
 “This is he of whom I said: 
 ‘The one who comes after me ranks ahead of me, 
 for he was before me.’ ” 
 16 And from his fullness 
 have we all received — 
 love in place of love: 
 17 for the law was given through Moses, 
 
 grace and truth came through Jesus Christ. 
 
 18 No one has ever seen God; 
 God the only Son, 
 who is in the Father’s bosom, 
 he has made him known. 
 
 The poem sets up a play, plainer in the Greek, between “was” and 
 “became” (or “came into being”), between en and egeneto.' In the be- 
 ginning the Word was (en). Through him all things came into being 
 (egeneto). And then the Word that was God became flesh. The Word, 
 which in the beginning was, intersected the world that became.” 
 
 In the midst of this great drama of eternal Word and temporal world 
 and of the astonishing entry of the Word into the world, John the Baptist 
 arrests the eye and the mind’s eye.’ There is no fully satisfactory way to 
 render in English the Greek words egeneto anthropos introducing him: 
 “Became a man”; “Became a man sent by God, named John.” Or, “There 
 came into existence a man sent by God.” John belongs to egeneto, the 
 becoming world, but within that world he points to the Word.’ He was 
 a “witness” who “testified” to the coming light. A witness who testifies 
 is a figure in a legal process. Right away the reader has the sense that 
 a trial is underway, and as the gospel unfolds the trial-like atmosphere 
 intensifies. 
 
 The challenge lies in discerning just who is on trial in which judicial 
 process and to what effect. 
 
 Il0 CALLED BY STORIES 
 
The trial of Jesus is climactic in all four of the gospels.’ In the Gospel 
 of John’s account, a contingent of Roman soldiers and Jewish police 
 arrest Jesus in the night, bind him, and take him to Annas, formerly 
 a high priest. Annas interrogates him and sends him to his son-in-law 
 Caiaphas, the present high priest. They then take him to Pilate’s head- 
 quarters early in the morning. Pilate emerges to ask “the Jews” what 
 charges they bring and then tells them to judge Jesus according to their 
 own law. They say that they are not permitted to put anyone to death. 
 Pilate enters his headquarters and after examining Jesus returns to tell 
 the waiting crowd that he finds no case against him. Because it is Pass- 
 over, he says, they may have Jesus released, but they choose another 
 prisoner, Barabbas, instead. Then Pilate has Jesus flogged and brings 
 him before the crowd. They insist that he be crucified. Pilate tells them 
 to crucify Jesus themselves and repeats his conclusion that there is no 
 case against him. They say that their law requires his death because he 
 claims to be the Son of God. Pilate reenters his headquarters, interro- 
 gates Jesus further, and is eager to release him. But the crowd forces 
 his hand. They fill the air with hints of charges to be filed against him 
 in Rome for setting free a person who claims to be king and who is 
 therefore a threat to the emperor. In response, Pilate takes his place ona 
 judge’s bench and, apparently finding Jesus guilty of treason, sentences 
 him to crucifixion (John 18:1-19:16). 
 
 There can be no gospel without an account of this trial. But law and 
 legal process are more pervasive in John than they are in the other gos- 
 pels, more pervasive than is necessary simply to recount the events that 
 take place in Jerusalem. This abundance of law has various extratextual 
 explanations, including the needs of the Church at the time the gos- 
 pel was assembled and circulated.° Such explanations are drawn from 
 the interaction between the text and the situations in which it was writ- 
 ten. They are essential to scholarly study of the early Church and of the 
 compilation of the text, and they can be useful, too, for understanding 
 the text itself. The interaction that is my primary focus here, however, is 
 that between the Gospel of John and its present readers. I basically take 
 the text as it has come to us with its own integrity as a literary whole.’ 
 
 One function of law in John is to serve the writer in the work of writing. 
 
 Near the conclusion, the author® explicitly addresses the difficulties 
 of composition: “Now Jesus did many other signs in the presence of his 
 disciples, which are not written in this book. But these are written so 
 
 JERUSALEM TRIAL IiIl 
 
that you may come to believe that Jesus is the Messiah, the Son of God, 
 and that through believing you may have life in his name” (20:30-31). 
 The available material was daunting.’ The last verse of the gospel adds 
 that if all the things Jesus did were written down, “the world itself could 
 not contain the books that would be written” (21:25). Every memory 
 would have been treasured and worthy of preservation in the gospel. 
 To choose among them meant exercising authorial jurisdiction over the 
 Messiah’s works. It was a complex and humbling responsibility. 
 
 Also, to say that the world could not contain all the books is to com- 
 ment on more than shelf space. The Word, through whom all things 
 came to be, is other than books can realize. The Word is the transcen- 
 dent other who can and cannot be contained in writing. Even a world 
 of words won’t do. The writer had to make complex professional judg- 
 ments about which of the accessible linguistic resources, in which com- 
 bination, would make for him the least inadequate statement of his 
 subject. 
 
 Then there is the difficulty in purpose. The author writes “in order 
 that you may come to believe.” '° To write so as to induce belief is chal- 
 lenge enough, but before writers can induce belief they must first make 
 themselves understood across differences in worlds. What is seen in one 
 world may be out of view in another. Karl Mannheim observed that 
 people in one world — “ideology” was his term— “are simply no longer 
 able to see certain facts” accessible to those in another." An example 
 of the phenomenon is Joseph Priestley’s blindness to oxygen. Thomas 
 Kuhn describes how a shift in scientific worlds—a “paradigm shift” 
 —“enabled Lavoisier to see in experiments like Priestley’s a gas that 
 Priestley had been unable to see” and was “to the end of his long life, 
 unable to see.” * 
 
 What could Lavoisier say to Priestley that would enable Priestley to 
 see the oxygen he had discovered? Persuasion may have been neces- 
 sary, but it would have been insufficient. Priestley was not simply un- 
 persuaded; he was unable to be persuaded. He couldn’t believe. That 
 was the challenge put to the gospel writer. How to write that readers 
 may come to believe? This was no puzzle for idle teasing in the after- 
 hours. To the writer it was a matter of life and death: “That through be- 
 lieving you may have life . . .” 
 
 Given the huge amount of material and the limits of language’s ca- 
 pacity to convey transcendent realities, together with the aim of de- 
 livering readers’ belief and the available choices for the craft of gospel 
 writing,’ the author must have been tempted by hyperbole and vigor: 
 
 112 CALLED BY STORIES 
 
go after the audience. Instead, he writes artfully and with reserve and 
 follows a strategy of economy in execution and plainness in presenta- 
 tion. (Rough edges still show in the final product.) 
 
 His laconic handling of the crucifixion is illustrative. John omits many 
 of the details of the passion story found in the other gospels'® and em- 
 ploys clean simplicity of statement for the enormity of Jesus’ torture: 
 “Then [Pilate] handed him over to them to be crucified. So they took 
 Jesus; and carrying the cross by himself, he went out to what is called 
 Golgotha. There they crucified him” (19:16-18). The lines are evoca- 
 tively spare. 
 
 Law helps satisfy the need to select and order the material of the story, 
 and its evocative capacity advances the strategy of restraint by allowing 
 the writer to say more with less. 
 
 In this, law works like the liturgical calendar in the gospel. On one 
 level the principal festivals of the Jewish liturgical year are an organiza- 
 tional device for the story: Miracles and pieces of narrative are gathered 
 into liturgical-chronological sections. The text emphasizes seven prin- 
 cipal signs performed by Jesus and, as a rule, appends explanatory ma- 
 terial to each. Some signs and their related material are associated with 
 particular Jewish feasts: the healing of a sick man with the Sabbath 
 (5:1-47); the miraculous feeding of a large crowd and Jesus’ walking on 
 water with Passover (6:1—71); and the healing of a blind man with the 
 aftermath of Sukkot (7:1-9:41). (A confrontation between Jesus and 
 “the Jews” is joined to the festival of Hanukkah [10:22—39].) 
 
 On another level, employment of the liturgical calendar serves the 
 economy of presentation. It allows the author, in Frank Kermode’s 
 phrase, to “release into his text many unspoken suggestions.” '° Each as- 
 sociation of Jesus’ signs with a festival has this effect. The walking on 
 water and feeding of a great crowd at the time of Passover, for example, 
 release suggestions of the crossing through the sea and of the wilderness 
 manna that the Passover liturgy celebrates.'” 
 
 The trial performs the same double service. First, it is a structuring 
 device. Much of the gospel builds toward the arrest, trial, and cruci- 
 fixion in chapters 18—19. Jesus’ extended discourse in chapters 13-17 be- 
 longs to the trial material because it is Jesus’ effort to help the disciples 
 understand what is about to take place. It is a pretrial interpretive guide 
 for them."* 
 
 Anticipation of the trial is actually set in motion much earlier. In 
 chapter 12 Jesus agonizes over the “coming hour” (12:27).’” In chap- 
 
 JERUSALEM TRIAL 113 
 
ter 11 plans are made to put him to death (11:51, 53). Still earlier, the text 
 tells of attempts to arrest him in Jerusalem during Hanukkah (10:39) 
 and Sukkot (7:32—44, 7:30).°° In chapter 9, a blind man healed by Jesus 
 is twice subjected to investigative questioning (9 :13—17, 24-34). Before 
 that, in chapter 8, Jesus is challenged on the legal validity of testifying 
 on his own behalf (8:13; see also 5:31—38), and the episode is drawn out 
 through a legal contest. Plots to kill Jesus are introduced in 7:25, 7:19, 
 7:1, and notably in 5:18.” 
 
 The latter instance occurs in conjunction with the healing of a sick 
 man on the Sabbath. On that occasion “the Jews started persecuting 
 Jesus” and began “seeking all the more to kill him” (5:16, 18). A. E. 
 Harvey identifies this episode as the narrative initiation of the formal 
 process against Jesus. Responsible Jews could not let his violation of 
 law pass without response and would fail “in their duty if they did not 
 see to it that the offender was convicted and punished.” ” The series of 
 legal encounters between Jesus and Jewish lawyers that follows after 
 chapter 5 may then be read as a drawn-out legal proceeding that is re- 
 peatedly frustrated until it can be properly brought to a conclusion in 
 Jerusalem.”? 
 
 As the narrative and substantive culmination of a series of legal skir- 
 mishes that begin early in the story, the Jerusalem trial provides struc- 
 ture to much of the gospel. It also has the added function of releasing 
 unspoken suggestions into the text. It recalls the trials of the faithful Job 
 and the testing of the people of Israel in the wilderness, and it may sum- 
 mon an underlying sense of the Hebrew Bible as a whole whose theo- 
 logical substance, Walter Brueggemann finds, is best conveyed in the 
 metaphor and imagery of courtroom trial.’* There are further, critically 
 important, specific associations with prophetic lawsuits, and I shall re- 
 turn to them. 
 
 II4 CALLED BY STORIES 
 
19. The Gospel Trial: A Divine Lawsuit 
 
 Jesus’ trial is not the only one. There are others, and they involve the 
 Paraclete, a figure who occupies four singular passages of Jesus’ last dis- 
 course (John 14:16—17, 26; 15:26; 16:7—-15) and whom John sometimes 
 refers to as the Spirit.’ 
 
 Jesus explains: “I will ask the Father, and he will give you another 
 Paraclete, to be with you forever. This is the Spirit of truth” (14:16-17). 
 The text speaks of “another” Paraclete as though Jesus himself is one. 
 The two are closely aligned: “It is to your advantage that I go away, for 
 if I do not go away, the Paraclete will not come to you; but if I go, I will 
 send him to you” (16:7). The Paraclete is the continuing presence of the 
 risen Jesus: “He abides with you, and he will be among you” (14:17).” 
 
 The New Revised Standard Version translates the Greek paraclete as 
 “advocate” (14:16-17). This is yet another figure in a legal process.’ 
 Jesus promises that the Paraclete “will teach you everything, and re- 
 mind you of all that I have said to you” (14:26). What the disciples did 
 not understand or believe in the circumstance and did not remember 
 afterward,’ the Paraclete will bring to mind and belief. That is how the 
 disciples are to be led at last to an understanding of the trial. In Ray- 
 mond Brown’s terms, in “a rerun of the trial of Jesus,” the Paraclete 
 allows its truth to emerge for the disciples.’ 
 
 The Paraclete actively participates in separate legal proceedings as well. 
 
 Three judicial processes may be discerned in the text. They are related 
 but distinguishable. Prominent is the trial of Jesus and the series of legal 
 skirmishes that lead to it. For this proceeding, the Paraclete is the post- 
 trial commentator who will fix in the disciples’ understanding the trial’s 
 meaning as Jesus had explained it to them in advance. 
 
 A second legal process, or series of processes, is anticipated for Jesus’ 
 followers. The disciples and successive communities of believers will be 
 put on trial. Theirs will be types or repetitions or extensions of Jesus’ 
 trial: “If they persecuted me, they will persecute you . . . But they will 
 do all these things to you on account of my name” (15:20—21). The dis- 
 ciples fled at the critical hour of Jesus’ trial in Jerusalem, but through the 
 Paraclete they will become participants in trials yet to come. The Para- 
 clete will equip them to be witnesses. They “also are to testify” (15:27) ° 
 in proceedings beyond the pages of the gospel.’ The Paraclete is a com- 
 
mentator on the trial of Jesus and will be an actively supportive presence 
 in the trials of Jesus’ followers. 
 
 The Paraclete has a third, more direct role in another trial. Jesus says 
 that the Paraclete “will testify on my behalf” (15:26) and “will prove 
 the world wrong about sin and righteousness and judgment” (16:8). He 
 seems to have in mind a judicial proceeding in which the Paraclete acts 
 as a prosecutor or prosecuting witness.* 
 
 Attention to this third legal process takes the reader more deeply into 
 the text and its involvement with law. 
 
 This other trial is introduced in the beginning in chapters 1-4. 
 
 Brown helpfully refers to John as “the great trial of the Word.” ? We 
 sense the atmosphere of a trial right away. We recognize the trial of Jesus 
 as the trial of the Word. And insofar as the projected trials of his fol- 
 lowers will be aimed at Jesus, we understand that they, too, are a trial of 
 the Word. 
 
 Brown’s description is helpful, but it could misdirect the reader. His 
 comment is made in reference to John the Baptist. He says that the Bap- 
 tist is “the first witness in the great trial of the Word.” The problem with 
 the statement is that it may place John the Baptist in the wrong court.'® 
 Herod beheaded John during Jesus’ lifetime. John had no direct asso- 
 ciation with the trial of Jesus or the anticipated trials of his followers. 
 He drops out of the narrative at the end of chapter 3." He is not involved 
 in the trial of the Word. 
 
 He figures in another legal proceeding. When the prologue first men- 
 tions John the Baptist (1:6—9), he is described as a witness; when he first 
 appears (1:19—28), he is depicted testifying. A trial is underway as the 
 gospel begins, but John the Baptist is not on trial, Jesus has yet to appear, 
 and only later will the trial of the Word commence.” 
 
 The Baptist is the opening witness in a trial of the world. This proceed- 
 ing belongs to a category known as the prophetic rzv, or divine lawsuit. 
 Commentators on John, beginning with Bultmann, have remarked on 
 “the great lawsuit between God and the world,” but only in a general 
 and unexplored sense. It is specifically and extensively helpful to read 
 the gospel against the background of the prophetic lawsuit. 
 
 In the books bearing their names, the classic prophets of the eighth 
 century B.C.E.—Isaiah, Micah, Amos, and Hosea—are portrayed in 
 part as court messengers.'* God was understood to rule in a heavenly 
 assembly. When the assembly convened as a court, God was judge and 
 
 116. CALLED BY STORIES 
 
prosecutor. He summoned, indicted, and sentenced various nations, but 
 His judgment was primarily aimed at His own people. They had broken 
 their covenant with Him by their idolatry and injustice. God admitted 
 the prophet to the heavenly assembly at some point in the proceeding. 
 The prophet heard or saw what God spoke and was commissioned to 
 deliver to the people the words of God, usually words of unalterable 
 doom. Isaiah 6 constitutes such a commissioning: “Then I heard the 
 voice of the Lord saying, “Whom shall I send, and who will go for us?’ 
 And I said, ‘Here I am; send me!’ ” (Isa. 6:8). God sends him with the 
 words of forthcoming destruction (Isa. 6:9—13). 
 
 The first four chapters of John do not expressly mention a divine law- 
 suit, and the apparatus of a heavenly assembly is missing, but something 
 like a riv is underway. 
 
 Like Isaiah, John the Baptist is said to be sent from God." And his 
 self-description as a voice crying in the wilderness is a quotation of the 
 words given to Isaiah in his capacity as a messenger from the heavenly 
 assembly (Isa. 40:1-5).'* However, instead of bearing words of judg- 
 ment from a trial that has already taken place in a heavenly assembly, 
 John the Baptist announces a trial that is underway in the here and now. 
 
 The prologue sounds themes of paired opposites: en /egeneto, light / 
 darkness, grace/law, Word /world. As the gospel proceeds, the oppo- 
 sites are understood to be dynamically related. Light is breaking in upon 
 darkness, day is superseding night, grace is replacing law, and the Word 
 that was in the beginning is intersecting the world that became. This 
 intersecting or cutting into is a crisis—a crisis in the sense of the Greek 
 krists, which can mean judgment or separation as well as the condem- 
 nation that results from a trial.'” 
 
 On the first day of the text, the Baptist testifies that one “is coming 
 after me” (1:19-28). On the second day he identifies Jesus as the coming 
 one. On the third day he repeats the identification, and his testimony 
 is corroborated by three witnesses— Andrew (1:41), Philip (1:45), and 
 Nathaniel (1:49). 
 
 Beginning with chapter 2, Jesus offers his own testimony about him- 
 self, first with signs (2:11, 23) and then by what he says (3:11—-18, 4:26). 
 And his testimony, too, is confirmed by the belief of an ever-widening 
 circle of believers. This testimony and its corroboration are functions of 
 chapters 2-4, which compose a unit.'* Throughout the initial chapters 
 there is repeated talk about disbelief (1:10—11, 3:11, 18-20, 36), but it 
 
 GOSPEL TRIAL II7 
 
is disbelief in general.’” The narrated specifics emphasize corroborating 
 
 belief. 
 
 A case has been established that accords with the opening statement: 
 The Word who was in the beginning came to his own, and his own re- 
 ceived him not. To establish the affirmative part of the case (the Word 
 came to his own), chapters 1-4 adduce testimony, corroborated within 
 the story, that the Word is indeed the Word and that the Word became 
 flesh in Jesus. 
 
 Chapters 5—19 more elaborately make out the negative part of the case 
 (his own received him not). The primary business of these chapters is 
 the people’s disbelief and rejection of Jesus.”° A reflective evaluation 
 at the close of the public ministry summarizes: “Although he had per- 
 formed so many signs in their presence, they did not believe in him” 
 (12:37). What they should and could have done, they did not. And “not 
 even his brothers believed in him” (7:5). The trial in Jerusalem is the 
 culmination of disbelief and rejection. The prosecution rests with the 
 crucifixion and burial. 
 
 The trial of Jesus in Jerusalem is a trial within the larger trial of the 
 world. It does not result in an explicit verdict and sentence. It does not 
 have to. We understand that the judges condemn themselves in con- 
 demning Jesus.” And the text is clear about who these judges are. 
 
 Chief Priests, Pharisees, and Jewish police play a prominent role and 
 head the roster of “the Jews” who are antagonists. The term the Jews has 
 been variously interpreted. These characters in the story may be depic- 
 tions of real people who opposed Jesus during his ministry. They may 
 be representations of Jews or Jewish Christians engaged in community 
 controversies at the time the gospel was being written. Or they may be 
 symbols of the world opposed to Jesus.” In the gospel, Jesus and most 
 of his followers as well as his opponents are Jews.” 
 
 “The Jews” do not stand alone in opposition. (This point is im- 
 mensely important to understanding the text and to resistance of abuse 
 of the text by anti-Semites.) ** The list opens to include Pilate and the 
 Romans. Their addition drives straight to the point underscored in the 
 prologue: The world did not know him.” It is the world who sits in judg- 
 ment. 
 
 Remarkably, the world in the text also includes the disciples. They, 
 too, are implicated. The text leads in this direction with its portrait of 
 
 26 
 
 them.”* At the beginning of the story, the disciples have some form of 
 
 118 CALLED BY STORIES 
 
belief in Jesus and follow him (1:35-51, 2:11). But when Peter affirms, 
 “We have come to believe and know that you are the Holy One of God” 
 (6:69), Jesus is unimpressed: “Did I not choose you, the twelve? Yet one 
 of you is a devil” (6:70). Later, Jesus’ question to one of the twelve is 
 aimed at all: “Have I been with you all this time, . .. and you still do not 
 know me?” (14:9). Although Jesus has carefully gone over everything 
 with them in advance, the disciples grasp nothing of the trial’s meaning. 
 Only two disciples follow Jesus to the trial, and one of them, Peter, three 
 times in the event denies association with him (18:17, 25-27). Almost 
 all are absent from the crucifixion, and none protests it. The only rec- 
 ognition of who has been condemned is the cynical inscription ordered 
 for the cross by Pilate as a show of his authority and of his contempt for 
 the Jews: “Jesus of Nazareth, the King of the Jews” (19:19). 
 
 The disciples are portrayed as insiders who betray Jesus in his hour of 
 greatest need. The gospel is unsparingly inclusive. The gospel’s “world” 
 did not know the Word. It is they who are put on trial, and it is they who 
 judge themselves.”’ 
 
 The trial of the Word is a trial within the trial of the world in which 
 the world — Jews, disciples, Romans — condemn themselves. 
 
 GOSPEL TRIAL II9 
 
20. A Reversal and Appeal 
 
 The Gospel of John never expressly condemns the judges of Jesus. We 
 are led to do so by the understood irony. Irony works this way. It allows 
 an author to make a statement without affirmatively articulating it. I can 
 say someone is “bad” in sucha way as to mean he is good without saying 
 so. If I do so successfully, I draw on both words and enrich them. I also 
 challenge a way of thinking. Someone who is judged bad may instead 
 be “bad,” and my saying so invites a reconsideration of the judgment. 
 The danger in irony is that it may not be recognized and that the state- 
 ment will not then be understood as meaning its opposite. This danger is 
 not present in the irony of Jesus’ trial. From the beginning the text pro- 
 vides the information that the defendant is the Word. We read the trial 
 to mean that those who judge him judge themselves. We are meant to 
 do so. 
 
 The text makes no express judgment and never editorially censures 
 the participants. The silence is conspicuous for Americans, who rou- 
 tinely criticize court actions and trials, especially infamous trials. We are 
 left with the irony of the judges’ self-judgment. But it is an irony, and 
 our conclusion is held in suspension. 
 
 This is no ordinary divine lawsuit. In place of the traditional finding 
 of guilt and pronouncement of terrible punishment, the Gospel of John 
 provides a wholly different conclusion for which the prophetic literature 
 offers a precedent. When the gospel’s first chapter has John the Baptist 
 invoke Isaiah — “I am the voice of one crying out in the wilderness” — 
 it alerts the reader to the possibility of a redemptive lawsuit. The quoted 
 line is taken from a proceeding in the heavenly assembly that is unlike 
 any other. The message given the prophet for the people is one of ten- 
 derness and restoration: 
 
 Comfort, O comfort my people, 
 says your God. 
 
 Speak tenderly to Jerusalem, 
 and cry to her 
 
 that she has served her term, 
 
 that her penalty is paid, 
 
that she has received from the Lord’s 
 hand, 
 double for all her sins. 
 
 A voice cries out: 
 “In the wilderness prepare the way of 
 the Lord, 
 make straight in the desert a highway 
 for our God. 
 Every valley shall be lifted up, 
 and every mountain and hill be made 
 low; 
 The uneven ground shall become level, 
 and the rough places a plain. 
 Then the glory of the Lord shall be 
 
 revealed .. .” 
 (Isa. 40:1-5) 
 
 The prosecutor has become Israel’s advocate, and the proceedings end 
 in renewal. 
 
 This lawsuit of redemption is precedent for John’s great trial of the 
 world.' The reader has known from chapters 1—4 that the divine law- 
 suit underway is not a prosecution designed to destroy the defendant 
 world. Chapters 20-21 now complete the lawsuit, and the resurrection 
 places the trial of Jesus in a new context for the reader just as it had done 
 in the understanding of the disciples. The Jerusalem trial is now to be 
 seen as an element in the larger proceeding against the world. And the 
 larger action is now to be seen as breaking down and reconstituting the 
 meaning of trials and judgment. 
 
 In consequence, readers must rethink their implied conclusion that 
 the judges of Jesus are condemned. John leads us to this conclusion and 
 now unsettles it. Chapters 20—21 take nothing back. They do not show 
 the judges to have been right after all. They do not ask us to change our 
 minds about the judges’ action. They ask us instead to see it in a new 
 
 light. 
 
 In the customary prophetic lawsuit, the case is tried before the heav- 
 enly assembly with God acting as both prosecutor and judge. In John 
 there is no heavenly assembly. At the end, the text makes it plain that 
 the Paraclete’s case against the world is tried before the reader. 
 
 REVERSAL AND APPEAL I2I 
 
When it is at last given to the disciples to grasp the significance of the 
 empty tomb, Thomas is absent from the scene. Soon afterward, the risen 
 Jesus dispels Thomas’s continuing doubt by inviting him to touch the 
 fatal wounds. “Do not doubt but believe,” Jesus says, and adds, “Blessed 
 are those who have not seen and yet have come to believe” (20:27, 29). 
 It is as though Jesus has turned from the disciples to readers. He ad- 
 dresses the appeal and beatitude to us.’ In the next sentences the author 
 explicitly addresses us, the readers for whom he has written “that you 
 may come to believe” (20:31).’ 
 
 We are the court who conclude that the judges of Jesus condemned 
 themselves. The resurrection disturbs our judgment, and we discover 
 that our judgment has more to do with us than with them. There is not 
 an us and a them. 
 
 The writer does not write from the heights. The gospel may soar, but 
 the author’s feet are firmly planted on human ground. The beloved dis- 
 ciple’s behavior is not more exemplary than that of Peter or the other 
 disciples or, for that matter, the judges. Nor does now looking back at 
 the past make the author superior by the passage of time. There is no 
 moral or chronological high ground to occupy. The writer never explic- 
 itly condemns the judges. He is in no position to judge. More than that, 
 where he now stands, after the resurrection, judgment is no longer the 
 point. 
 
 He would have readers understand that the same is true of us. The text 
 has made us judges like the Jewish authorities and Pilate. Their world 
 extends from the page to embrace the reader, and the here and now in 
 the text becomes the here and now of the reader’s interaction with the 
 text. The divine lawsuit is tried before us. But at its conclusion, after the 
 resurrection, the author would have from us belief and not judgment. 
 
 If the Gospel of John were an appeal in a death penalty case, it would 
 argue for the life of the condemned. Here, capital punishment has al- 
 ready been carried out, and the plea is made to the judges for the judges’ 
 life. We, too, belong to the world on behalf of whom the krisis has come. 
 
 122 CALLED BY STORIES 
 
21. The Power of the Word: Two Women 
 
 The author brings his appeal “so that you may come to believe . . . and 
 that in believing you may have life” (John 20:31). This is not an entreaty. 
 It is the language of causation: Aina, in order that you may believe. It 
 carries the sense of fruitful action. The gospel’s performance of trials 
 on the page is intended to be performative. It is to animate belief in the 
 reader. 
 
 As a messenger who bears belief engendering words, the writer of 
 John follows the example of two women in his text.' One is Mary Mag- 
 dalene. She and the beloved disciple are among the few who stand near 
 the cross as Jesus dies. It is she who goes to the dark cemetery by her- 
 self, discovers the empty tomb, and runs to Peter with word of it. She 
 returns to the tomb and remains there alone after Peter and the beloved 
 disciple leave. It is she who is then the first to see the risen Jesus: “Jesus 
 said to her . . . “go to my brothers and say to them, “I am ascending to 
 
 09 
 
 my Father and your Father, to my God and your God.” ’ Mary Magda- 
 lene went and announced to the disciples, ‘I have seen the Lord’; and 
 she told them that he had said these things to her” (20:17—18). 
 
 Her words have no immediate effect, but the reader anticipates that 
 they will soon bear fruit. She is the first bearer of the words of the risen 
 Jesus. In The Gospel According to Luke she is identified as an early fol- 
 lower of Jesus who had been cured of acute demon possession. In John 
 she is introduced into the text late and abruptly, and we are told no more 
 about her than we are told about the beloved disciple. She is an apostle 
 
 and a leading example of who the author will be and what he will do.” 
 
 A Samaritan woman in chapter 4 is an earlier, preresurrection example. 
 She is nameless. So is the beloved disciple. He shares that silence with 
 her. He is identified as the author of the gospel, but only later tradi- 
 tion supplies the name John. Whether this is a correct identification is 
 no more certain than which John he might be.’ The care and space the 
 nameless author devotes to this nameless woman may indicate either an 
 aspiration to share her role or an understanding that he does so. 
 
 She is the only figure in the gospel who bears the words of Jesus to 
 others and in doing so produces a harvest of believers. She enters the 
 text as Jesus passes through Samaria on the way to Galilee from Judea. 
 He stops to rest at Jacob’s well. “A Samaritan woman” from the nearby 
 
city comes to draw water, and Jesus initiates a conversation with her. 
 In the economy of the gospel, it is an extended conversation.‘ The first 
 half revolves around the image of Jesus as the source of “living water” 
 (4:7-15). In the second, Jesus discloses prophetic knowledge of her life: 
 “You have had five husbands, and the one you have now is not your hus- 
 band” (4:18). At the end of it, he reveals himself to her as the Messiah 
 in the critical formula “I am he” (ego eimz) (4:26). The disciples appear 
 and interrupt the exchange. They are shocked that he is speaking with 
 a woman. Rabbis avoided public conversation with women. Moreover, 
 this is a Samaritan woman, and the Jews held Samaritans to be apostate.’ 
 
 The woman abandons her water jar to return to the city with the mes- 
 sage: “Come and see a man who told me everything I have ever done! 
 He cannot be the Messiah, can he?” (4:29). The townspeople flock to 
 the well and invite Jesus to stay. He accepts. “And many more believed 
 because of his word. They said to the woman, ‘It is no longer because of 
 what you said that we believe, for we have heard for ourselves, and we 
 know that this is truly the Savior of the world’ ” (4: 41-42). 
 
 Whatever may be said of the woman’s numerous husbands, she is 
 clearly a person at the margins, and she belongs to a people who are not 
 Jesus’ own. But she takes on an apostolic role. Jesus needs her. The tes- 
 timony she bears has an immediate and considerable impact.° The effect 
 is achieved by the words rather than by her belief and any infectious 
 quality her belief may have. Jesus has revealed himself to her as the Mes- 
 siah in the special formula: “Ego eimi” (I am he). But the most that she 
 can say to the townspeople about this critical point is a question: “Could 
 this possibly be the Messiah?” The uncertain status of her belief high- 
 lights the fact that the productive power lies in the story and in her tell- 
 ing it. 
 
 As the writer of John knows sympathetically, it is in the nature of 
 apostleship that this should be so. The Word goes out and returns as a 
 harvest. The effect is in the Word. In making his appeal—in replaying 
 the trial of Jesus as a trial of the World, in representing the broken rv 
 to belief — John puts the effective words to the reader and thus follows 
 the example of the Samaritan woman. 
 
 124 CALLED BY STORIES 
 
22. The Power of the Word: 
 
 Moses and the Spirit 
 
 The Gospel of John’s anticipation of the effectiveness of its story in 
 generating belief is not premised upon a power inherent in the words. 
 The power is that of the Word. The relation between the written words 
 and the Word that makes them productive takes form in the text as the 
 Spirit, or Paraclete. 
 
 The gospel enlists Moses’ aid in presenting the subject. It does so first 
 in a poem that is strategically placed at the end of chapter 12, where 
 Jesus’ public ministry concludes. I shall return to the poem later for 
 what it has to say about condemnation and disbelief, but I call attention 
 to it now for its allusions to Moses. The poem can be translated: 
 
 44 Whoever believes in me 
 believes not in me 
 but in Him who sent me. 
 45 And whoever sees me 
 sees Him who sent me. 
 46 As light I have come into the world 
 in order that all who believe in me 
 remain not in darkness. 
 47 And if anyone hears my words and keeps them not, 
 I do not condemn (frino) him, 
 for I did not come in order to condemn (krino) the world 
 but in order to save the world. 
 48 Whoever rejects me and does not receive my words 
 is already subjected to his judge (Arinonta); 
 the word that I have spoken, 
 that word will judge (Arinez) him in the last day; 
 49 for not on my own have I spoken, 
 but the Father who sent me 
 has Himself commanded me 
 what to say and what to speak. 
 so And I know that His commandment is eternal life. 
 Thus what I speak, 
 I speak just as the Father has told me. 
 
The notions of being sent and being sent with words suggest a 
 prophet as messenger from the heavenly assembly. Especially given the 
 references to command and commandment, they particularly suggest 
 Deuteronomy’s prophet-like Moses: “I will put my words in the mouth 
 of the prophet, who shall speak to them everything that I command. 
 Anyone who does not heed the words that the prophet shall speak in my 
 name, I myself will hold accountable” (Deut. 18:18—19).' 
 
 In addition and more extensively, the poem’s notions of keeping 
 words and of commandment as life recall Moses’ last remarks to Israel.” 
 Moses said that if the people obey the commandments they will live; 
 if they do not they will perish @.g., Deut. 30:15—18). And he instructs 
 them: “Take to heart all the words that I am giving in witness against 
 you today; give them as a command to your children, so that they may 
 diligently observe all the words of this law. This is no trifling matter for 
 you, but rather your very life” (32:46-47). 
 
 The Gospel of John’s allusions to Moses establish an interpretive link 
 between Moses’ last address to Israel and the last discourse of Jesus that 
 soon follows. The link is strengthened by allusions to Moses within the 
 last discourse itself. For example, Jesus tells the disciples that if they 
 love him they will keep his commandments (John 14:15), and he con- 
 tinues to speak of keeping his commandments and of keeping his words 
 and of life (14:18—24). These are very like the statements Moses makes.’ 
 
 There are two critical differences between the speeches, however: 
 Moses says to take his words to heart (Deut. 32:46; see also 6:6, 30:2, 
 6, 17), and he writes them down (31:9, 19, 22, 24).* Jesus does neither. 
 These omissions make room in the text for Jesus to address the role of 
 the Spirit. 
 
 Although Jesus makes no reference to the heart, where his command- 
 ments are to be kept, he says something similar: He talks about the 
 Spirit, who will abide with and be in the disciples (John 14:17). To keep 
 the words, to have them in the active center of one’s being, to have them 
 by heart, is to be the abode of the Spirit. 
 
 John Ashton observes that there is little mention of the Spirit in John 
 except in association with words.’ At one point Jesus says explicitly: “It 
 is the Spirit that gives life; . . . The words that I have spoken to you 
 are both Spirit and life” (6:63). The connection is repeated when Jesus 
 talks to his disciples about keeping his commandments and adds the first 
 mention of the Paraclete: “And I will ask the Father, and he will give 
 
 126 CALLED BY STORIES 
 
you another Paraclete. . . . This is the Spirit of truth. ... You know him, 
 because he abides with you, and will be in you” (14:16-17).° 
 
 Words and Spirit go together. It is by the power of the Spirit that the 
 commandments of Jesus are kept in the heart.’ 
 
 In addition to speaking, Moses writes his words. Jesus does not.* He 
 leaves the writing to the disciples.” This is another opening to the 
 Spirit."° 
 
 The Gospel of John portrays Jesus’ followers as ordinary at best. They 
 may or may not be literate, but they are certainly mundane. They aban- 
 don Jesus at the worst of moments, and the discovery that his body is 
 missing does not make them more reliably robust. Peter sees the empty 
 tomb, and nothing indicates that the sight makes him believe Jesus has 
 risen from the dead. An unnamed disciple, the beloved disciple, also 
 sees the tomb. He “believes,” but returns home and soon thereafter hud- 
 dles in fear with other disciples behind locked doors (20:3-10, 19). When 
 the risen Jesus appears, the disciples rejoice, but Thomas, who was ab- 
 sent, typifies their doubt. He will not believe until confronted by Jesus 
 and invited to touch the mortal wounds (20:24-28). 
 
 As the story continues in chapter 21, the disciples have some form of 
 hesitant, provisional belief, but they know neither what to do nor what 
 to say and return to their old trade of fishing." They do so at night, in 
 the darkness that the prologue opposes to the light of the Word. Their 
 sojourn with Jesus has not made them more successful fishermen, and 
 they catch nothing. When Jesus appears on shore just after daybreak, 
 none recognizes him. Recognition comes only when, at Jesus’ bidding, 
 some of the disciples cast a net and retrieve an impossibly large number 
 of fish. Even then, the gospel depicts the disciples as dazed and uneasy: 
 “Now none of the disciples dared to ask him, “Who are you?’ because 
 they knew it was the Lord” (21:12). This group includes the “beloved 
 disciple,” who is said in the last verses of the gospel to be the one “who 
 is testifying to these things and has written them” (21:24).'” For all that 
 this disciple is beloved, his belief is not depicted as sufficiently strong 
 or enduring for him to have discerned the meaning of the trial of Jesus. 
 
 The resurrection is critical, but the disciples’ understanding of its sig- 
 nificance is fragile all the way through to the end of the text. These 
 people are capable neither of gospel writing nor of the bold activity they 
 will subsequently undertake, hinted at in chapter 21 and recounted in 
 The Acts of the Apostles, which follows John in the canon. 
 
 POWER OF THE WORD: MOSES AND THE SPIRIT 127 
 
In John, the Spirit is the source of testimony. The Spirit at last gives 
 the disciples memory and understanding. The Spirit writes the words of 
 Jesus on the hearts of the disciples, enables them then to write the words 
 on pages, and will write them on the hearts of believers. 
 
 Ashton notes that in John “works have been transformed into words, 
 spoken in the one case, written in the other. With Jesus’ passing, the 
 chance of witnessing his signs has gone forever. This is not a matter of 
 regret: ‘It is good for you that I go.’ ” ’ In writing, the disciples do works 
 greater than those of Jesus (14:12). Their writing fulfills the promise. 
 Earlier, in discussing the challenges faced by the gospel writer, I cited 
 his statement of the problem of selecting material: “Jesus did many other 
 signs. . . . these are written in order that you may come to believe.” The 
 statement can be read with a different emphasis: “Jesus did many other 
 signs. .. . these are written in order that you may come to believe.” Jesus 
 had done signs and miracles without collaborators or intermediaries, 
 and people believed. After the resurrection, belief will be a function of 
 the Spirit’s labors in and with the writings of Jesus’ followers. In his final 
 prayer, offered in the pretrial discourse, Jesus intercedes for “those who 
 will believe in me through [the disciples’] word” (17:20). The disciples’ 
 word will be pivotal as the medium for belief.'* Following the resur- 
 rection, Jesus “breathed on them and said to them, ‘Receive the Holy 
 
 Spirit’ ” (20:22). The Word of the beginning is powerfully committed to 
 
 writing at the end, and this is the work of the Spirit. 
 
 The disciples’ words have no power of their own, and their welding with 
 the empowering Spirit is neither a magical nor a mystical process. The 
 author of John is frank. He did not receive his book from the hand of 
 an angel. He wrote it, and he omitted a lot of good material. Moreover, 
 he wrote within a particular community with a particular history, and 
 his words and references depended on that community. That he and his 
 writing had a locus among immediate friends is clear from the affidavits, 
 added by another hand, that vouch for him and his testimony (19:35, 
 21:24). That he is positively dependent upon the Jewish community is 
 patent. He can be no anti-Semite.’” He enacts his dependence: He has no 
 way to tell his story without the language of Jewish liturgy and Jewish 
 stories and without Isaiah and Moses. This is a representation that the 
 Word became flesh. The continuing presence of the Word — the Spirit — 
 is embodied in words in communities in histories, as it always has been. 
 
 128 CALLED BY STORIES 
 
23. The Power of the Word: Disbelief 
 
 The Word goes forth and does not return empty but prospers in the 
 thing for which it is sent. The written gospel is a medium of believ- 
 ing. The author anticipates that, following the example of the Samaritan 
 woman and with the postresurrection gift of the Spirit, the words will 
 be performatively effective —“in order that you may come to believe.” 
 
 But people do not believe. 
 
 The divine lawsuit leads to the resurrection, the Spirit is given with- 
 out measure, and the gospel is written. All resources are now fully com- 
 mitted to belief and life. Nothing is held in reserve. Disbelief is impos- 
 sible. But it happens. It is the impossible possibility.' 
 
 The author had lived with disbelief, his own and that of his fellow dis- 
 ciples as well as that of Jesus’ antagonists. John would continue to live 
 with disbelief if the Epistles of John may be taken as a guide. They in- 
 dicate that the very community that was the gospel’s matrix itself suf- 
 fered schism, deception, and either failures of believing or conflicts in 
 believing. Even among the gospel’s own, the impossible took place.” 
 
 There is a pattern in John’s response to the impossibility of disbelief: 
 he confronts the difficult questions but does not allow them to deter- 
 mine the answers. The pattern exhibits a simplicity that deserves close 
 attention. 
 
 Earlier I turned to the poem that ends chapter 12 to take note of its allu- 
 sions to Moses. I now return to that poem and its context to take note 
 of the characteristic pattern of its response to disbelief. In chapter 12, 
 Jesus ends his public ministry and then hides. At that strategic point, the 
 Gospel of John inserts an editorial reflection on the plain, foundation- 
 shaking fact that disbelief, including perhaps the author’s own and that 
 of other disciples, had already been a common reaction to Jesus’ signs. 
 
 The text quotes Isaiah (53:1): “Lord, who has believed our message, 
 and to whom has the arm of the Lord been revealed?” (12:38). The 
 answer is a second quote from Isaiah (6:9—-10), and the reader recoils 
 from its ruthlessness: “He has blinded their eyes and hardened their 
 heart, so that they might not look with their eyes, and understand with 
 their heart and turn—and I would heal them” (12:40).’ People do not 
 believe because God prevents them from believing. 
 
 People are condemned by their failure to believe. If this be self- 
 
judgment, it constitutes a power of self-condemnation greater than 
 God’s power to save, and darkness is then greater than light. If disbelief 
 is God’s doing, His power to foreclose saving belief is at war with His 
 power to give eternal life. Either way, or both ways, what kind of God 
 is this? 
 
 The writer offers no mitigating interpretation of the terrible statement 
 from Isaiah and does not try to resolve the contradictions and revulsion 
 it arouses. The text moves briskly to the concluding poem: 
 
 Then Jesus cried aloud: 
 
 “Whoever believes in me 
 
 believes not in me 
 
 but in Him who sent me. 
 
 And whoever sees me 
 
 sees Him who sent me. 
 
 As light I have come into the world 
 
 in order that all who believe in me 
 
 remain not in darkness. 
 
 And if anyone hears my words and keeps them not, 
 I do not condemn him, 
 
 for I did not come in order to condemn the world 
 but in order to save the world. 
 
 Whoever rejects me and does not receive my words 
 is already subjected to his judge; 
 
 the word that I have spoken, 
 
 that word will judge him in the last day; 
 
 for not on my own have I spoken, 
 
 but the Father who sent me 
 
 has Himself commanded me 
 
 what to say and what to speak. 
 
 And I know that His commandment is eternal life. 
 Thus what I speak, 
 
 I speak just as the Father has told me.” 
 
 The introduction to the poem is striking. Jesus “shouts” it, or “cries it 
 aloud.” This is an odd formula. It is also oddly placed. According to the 
 preceding narrative, Jesus concluded his public performance of signs, 
 then departed and hid from his followers. There is no one in the text for 
 him to shout the poem to. The awkwardness contrasts with the finely 
 wrought poetry in the Greek.* This combination of factors supports 
 
 130 CALLED BY STORIES 
 
John Ashton’s conclusion that the text is meant “to draw the reader’s 
 attention to the particular importance of what follows.” ° 
 
 I think that Isaiah’s awful saying about God hardening people’s hearts 
 has already aroused the reader’s attention. It certainly stimulates in my 
 mind questions about human belief and the terrible power and suffering 
 of God. The poem does not answer such questions. It begins to reconfig- 
 ure them instead. It moves away from the repellent, puzzling dilemma 
 to the responsible action of telling a story told in hope. 
 
 The poem recapitulates essential elements of the prologue to the gos- 
 pel. The prologue’s language and themes have coursed through the in- 
 tervening chapters to give and to gather meaning ® and now reemerge 
 once more. The development of the contrasts belief /disbelief, light / 
 darkness, life condemnation does not issue in a simple, symmetrical 
 duality: those who believe are saved for the light; those who do not be- 
 lieve are lost to darkness. 
 
 Disbelievers are assigned no new or particular status in the poem. At 
 the “last day” —in the future? the day of Ariszs that is already under- 
 way? —they will be judged by Jesus’ word. His word will condemn 
 them, but he has come to save, not condemn. The condemning word 
 comes from the Father and is the command of eternal life. What sense 
 does this make? Is life rather than condemnation the concluding, pre- 
 vailing word, or is it not? Although I would have felt personally and 
 professionally compelled to pursue these questions and attempt a logi- 
 cal resolution of them, the poet takes a different, aesthetic tack. 
 
 The poem associates the action of believing with receiving and keep- 
 ing words. In the poem, the essential, self-described action of Jesus is 
 speaking. (Note the density of the use of the verb speak in the conclud- 
 ing verses of the poem.) He does not judge /condemn or speculate; he 
 gets on with the business of speaking. He speaks what the Father com- 
 mands him, and the Father’s commandment is eternal life. Disbelief is 
 not replaced by belief, nor are judgment and condemnation replaced by 
 acquittal. Along with abstraction, disbelief and condemnation are sup- 
 planted by the specific activity of speaking the only words that Jesus is 
 authorized to speak. They are living words: The light has come into the 
 world; those who believe in him need not remain in darkness. 
 
 The poem works down to Jesus speaking. It provides neither analysis 
 nor answers in what we think of as the traditional form—no system- 
 atic reconciliation of contradictions, no closure, no apologetic theory, 
 no exposition of a neutral principle. It concludes with Jesus speaking 
 about speaking what he is told. 
 
 POWER OF THE WORD: DISBELIEF I3I 
 
The poem addresses belief and disbelief and their consequences. 
 Irreconcilably, it speaks of the judge of disbelievers, the condemning 
 word whose content means eternal life and therefore, presumably, can- 
 not condemn the disbeliever. It opposes those who believe and receive 
 Jesus’ words to those who reject him and do not receive his words. Are 
 the latter to be condemned? How and to what? These verses contain no 
 opposite to eternal life. They leave the reader with Jesus affirming that 
 the commandment given him for utterance is, exactly, life. And then the 
 text turns toward the death of the life-giving Word. 
 
 This is a characteristically Johannine pattern: Confront the hard ques- 
 tions and fundamental contradictions of belief and disbelief and their 
 entailments. And then, because they cannot be resolved from within the 
 limits of their own terms, place them in a wholly different context, a 
 performance that offers answers that really are answers, but not those 
 originally sought and not in the forms anticipated. 
 
 This is the pattern followed in the poem. It is repeated throughout the 
 gospel,’ and it is a basic pattern of the gospel as a whole. The text builds 
 to the trial and execution of Jesus with its ironies of the trial judges’ self- 
 condemnation and of the status of a world that rejects the Word. There 
 is a pause at the tomb, a disjunction. At that point, after the fashion of 
 Jesus in the poem, the author says all that he is authorized to say. He tells 
 the story of the resurrection. And his words have to do with life and not 
 death. Altogether missing are words of condemnation. Nothing of pun- 
 ishment or heroic revenge. No eye for an eye. Missing also are words 
 of speculation and explanation. No exposition of judgment, justice, or 
 mercy. In their place John provides an account of confrontations with 
 the risen Jesus and his speaking: “Peace be with you” (20:19, 21). 
 
 The pattern continues beyond the pages of the gospel. As I noted, 
 the Epistles of John give evidence of continuing disbelief within John’s 
 own community. The Epistles’ basic response to this seeming triumph 
 of failure among its own is to repeat the story: “We declare to you what 
 was from the beginning. . . . God is light and in him there is no dark- 
 ness at all” (1 John 1:1, 5). The author confronts the impossible —inex- 
 plicable because it is impossible—and in response repeats his perfor- 
 mance. He tells once more the story that is to generate belief but has 
 often not done so. 
 
 The gospel and the Epistles do not keep on retelling the story with mad 
 determination or with gleeful, triumphal aggression to promote self- 
 condemnation, so that, every time people hear or read the story and dis- 
 
 132 CALLED BY STORIES 
 
believe, darkness will be compounded. The gospel is written to believ- 
 ing for life. It has no other intention. It is not written for disbelief and 
 death. It hasn’t the power to condemn. 
 
 Nor does the author write out of naiveté, as though disbelief will dis- 
 solve at the wave of a story. The gospel and its tradition are not naive. 
 The beloved disciple had, after all, witnessed the crucifixion and knew 
 enough of disbelief, including his own. Still less does he write pitiably 
 against nothingness, writing hopelessly exactly because it is hopeless, 
 repeating the story despite the loss of meaning because the repetition is 
 all that is left except the craft of storytelling and the self-righteousness 
 of continuing failure.* 
 
 Nor does he write tentatively, with eroded confidence. And, in any 
 event, there is no necessary connection between the power in the words 
 and the state of his confidence. He simply does what he is authorized to 
 do. He tells the story that represents the risen Jesus. 
 
 POWER OF THE WORD: DISBELIEF 133 
 
24. John’s Freedom from and for Law 
 
 The Gospel of John appropriates the language of law as the medium for 
 its performance. This would be wholly unremarkable for an appeal from 
 a lower-court judgment to a higher court. It would also be unremark- 
 able for a novel or film because law lends itself easily to storytelling, 
 with its clash of opposites, conflicting narratives, investigation, argu- 
 ment, courtroom drama, suspense, a concluding judgment, and resolu- 
 tion. In fact, the language of law is unremarkable generally in the way 
 we Americans talk about ourselves and our life together: “I’ve got my 
 rights”; “I'll take it all the way to the Supreme Court.” We take pride in 
 the rule of law and hope for it for others. The Jews of the gospel’s day 
 may themselves have been saturated with the thoughtforms and lan- 
 guage of law. 
 
 But the abundance of law in the gospel zs remarkable. Jesus was exe- 
 cuted by law. Law should be regarded as cursed. It is not. The author 
 puts it to use. Strange to say, he makes out a lawsuit against law. This 
 exhibition of his freedom to employ the medium of Jesus’ death enacts 
 his subject. 
 
 The prosecution’s case against the world focuses on the rule of law. 
 
 A. E. Harvey points out that the sequence of events in the gospel is 
 rooted in the normal observance of the Jews’ own legal system.’ The 
 healings on the Sabbath and Jesus’ statements that he was the Son of 
 God, taken as blasphemy, provide a basis for prosecution on a capital 
 charge.” And Alan Watson notes that belief in Jesus as the Messiah could 
 ignite an uprising that the Romans would have to put down Gee 11:48). 
 Fears for the loss of the Temple and Jerusalem would justify the San- 
 hedrin in seeking to put Jesus to death.’ From the perspective of the text, 
 for its purposes, the law of the Jewish community appears to have been 
 correctly upheld.* 
 
 At the eleventh hour Roman law, too, is drawn into events. The Gos- 
 pel of John emphasizes the role Roman law plays in Jesus’ execution. 
 This emphasis was carried forward in the early statement of Christian 
 faith known as the Apostles’ Creed: Jesus “suffered under Pontius Pi- 
 late” — under Pilate, not the Jews. Pilate is the officer of the law who did 
 this thing, but the gospel does not portray Pilate as an enemy of Jesus. 
 At first Pilate finds that there is no case against Jesus and looks for a 
 
way to release him. But when Pilate hears the crowd crying out the lan- 
 guage of treason and invoking the emperor, he brings Jesus outside and 
 then delivers him to crucifixion (19:12-16). It is an act of juridical con- 
 demnation. Pilate convicts Jesus of what Watson calls “the most seri- 
 ous Roman crime of all.”’ Pilate is—to use a term favored by Ameri- 
 can judges— powerless to do otherwise. He acts according to Roman 
 law, and the text does not question the assumption that Roman law is a 
 politically necessary, culturally impressive creation. 
 
 From all appearances, in the instance of those who sat in judgment of 
 Jesus in John, the system worked as it was supposed to do. Within the 
 ordinary administration of that system, Harvey says, due process was 
 observed when Jesus was found guilty.° The text offers no grounds to 
 conclude that the judges defaulted in their responsibility to the law. The 
 Jews were justified in forcing Pilate to act, and Pilate acted according to 
 law. The text never questions the validity of the action as a matter of law, 
 and it never questions the validity of law itself as a matter of politics. 
 
 Nevertheless, the institutions of law—functioning normally and 
 without express criticism in the text—are put in issue.” No less than 
 their officers, the institutions condemn themselves. The point is simple 
 to state, but difficult to accept. The temptation is to blunt the force of it. 
 
 It would be easier if the text were to identify a defect in the judges 
 or the law and to explain Jesus’ crucifixion as a consequence of this 
 shortfall—bad judges, bad law: Jesus was wrongly convicted. In this 
 event, the offending instance could be separated and the fabric of the 
 law mended so as to allow continued assertion of its goodness. Or it 
 could be assumed that the Roman version of law was an early stage in an 
 evolutionary process and that qualitatively different, higher forms have 
 appeared since then. American law could then be distinguished from the 
 Roman version, and readers could be excused from taking the full force 
 of John’s story.® The text provides no support for such a move. 
 
 The gospel has no quarrel with the quality of Roman law. The law 
 could not have been reformed and made better in a way that would es- 
 cape the self-condemnation presented by the gospel. Jesus is executed 
 by law. The law rejects the Word and condemns itself. The judgment 
 runs not to the goodness or badness of the law, but to its foundations in 
 a world that rejects the Word. 
 
 The text never pronounces a judgment upon the law for the condemna- 
 tion of Jesus. It suspends that judgment and instead tells the story of the 
 resurrection, the event that places the preceding events and the law ina 
 
 JOHN’S FREEDOM FROM AND FOR LAW 135 
 
wholly different context.’ The author’s freedom to use the language of 
 law —the words, forms, methods of presentation, ways of thinking —is 
 the witness he bears to the difference."° 
 
 This freedom is characteristically extravagant. The gospel introduces 
 the Arists in the prologue and then gives it narrative form in chapters 
 2-4. The stories in those chapters indicate what happens when the Word 
 becomes flesh. As his first sign, Jesus turns water to wine (2:1-11). He is 
 attending the celebration of a wedding. There is reference to drunken- 
 ness. The wine runs short. At the instigation of his mother, Jesus directs 
 servants to fill stone water jars. The text is specific. There are six jars. 
 The servants fill them to the brim. Each holds twenty or thirty gallons. 
 The water turns to wine. Jesus has instantly produced something on the 
 order of 150 gallons of wine for an already well-watered wedding party. 
 The great quantity is matched by its high quality. The expert praises it. 
 If, as George Macrae avers, John is singularly humorless," its author has 
 nonetheless traveled with the spirit of comedy. He knows the joyful, ex- 
 pressive value of excess.’” The intersection of en with egenezo is transfig- 
 uring. Water is changed into wine, an exorbitant amount of good wine, 
 freely drunk. 
 
 It belongs to this exuberance that, subsequent to Jesus’ execution ac- 
 cording to law, the language of law is turned into a medium for the gos- 
 pel.’* After the resurrection, obedience to the state’s law is a tactic and 
 not an obligation.'* The disciples are free to obey the law as Jesus did. 
 They are also free to break the law as Jesus did. They are free to suffer 
 the consequences as he did, perhaps in the same form (21:18-19). And 
 they are free to make use of law as Jesus did. This is so because Jesus 
 accepted, suffered, took upon himself the goodness as well as the evil, 
 the upholding peace as well as the violence of law —both, together the 
 indicia of its fallenness—and triumphed over them. The resurrection 
 is the ultimate that makes law penultimate, like all things of the politi- 
 cal and natural worlds.’* The resurrection both assures law a place and 
 places limits on it. Law is to be respected, even celebrated, for the sake 
 of the ultimate. But it cannot rule because it is penultimate. 
 
 The relation of the penultimate to the ultimate — the dialectics of say- 
 ing both no and yes to law — takes form in the text of John in the never- 
 stated, suspended condemnation of the legal system in combination 
 with liberal use of the forms and language of law. The dialectics does 
 not mean proceeding by halves. Like Jesus, the author is freely, fully in- 
 volved in law but not of it. 
 
 136 CALLED BY STORIES 
 
25. Lawyers’ Independence 
 
 The author of the gospel makes much of law because he and his enter- 
 prise cannot be determined by it. This freedom is not the same thing as 
 the professional independence prized by lawyers, and I must explore the 
 difference. 
 
 Professional ethics require that a lawyer exercise independent profes- 
 sional judgment.’ The thought is that a lawyer should be subject to no 
 outside influence that might dilute her loyalty to a client. She is to main- 
 tain independence for investment in the client’s cause. 
 
 But the matter is not so simple. Another kind of independence pulls 
 an attorney in the opposite direction: A lawyer is supposed to reserve 
 a measure of independence from her client as well. She must fulfill a 
 higher duty to the law and the legal system.’ Accordingly, a government 
 lawyer is to serve the people and not a particular officer of the govern- 
 ment.’ And a public prosecutor’s duty “is to seek justice, not merely to 
 convict.” * No less importantly, Robert Gordon observes, the small but 
 significant segment of the bar who service large, powerful corporations 
 “must be committed to helping maintain . . . the rules and institutions 
 of the legal framework, even when doing so hurts their clients.” ° The 
 hope is to provide some form of moral constraint on amoral corpora- 
 tions and powerful people, an end that finally serves such clients’ best 
 interest by supporting the general conditions in which they may con- 
 tinue to prosper.’ 
 
 So lawyers should be independent of power in order to serve their 
 clients, but they should be independent of clients in order to serve the 
 higher purposes of law. 
 
 There are still more complications. Where a client, like the govern- 
 ment or a large corporation, is a wielder of great power, there are good 
 reasons for insisting that the attorney maintain professional distance 
 from the client. Even in these circumstances, however, it is unclear that 
 distance is always fitting.* Independence from clients is improper for 
 most lawyers in most of their professional involvements where indepen- 
 dence stands fora lack of empathy,’ or distance from persons as well as 
 interests,'° or knowing better than the client what the client wants and 
 needs." 
 
 The independence I address here is the aspiration, described by Gor- 
 
don, that “a part of the lawyer’s professional persona must be set aside 
 for dedication to public purposes”:'* Attorneys should be free of un- 
 due, outside influence in order to devote themselves to clients, but they 
 should always be bound to the higher purposes of law. To make such a 
 statement, standing alone or in a Law Day speech, is to say very little, 
 however. What are improper influences? What are the higher purposes 
 of law? Should an attorney serve different kinds of clients, say a ciga- 
 rette manufacturer and a poor criminal defendant, with the same quali- 
 fied devotion? Is a scorched-earth, all-out defense of an individual 
 against the power of the state never right? Might not such a defense 
 serve the higher purposes of law? 
 
 To represent both people and public interest with integrity may re- 
 quire continuing, contextually complex judgments. There is some opin- 
 ion that lawyers are not successfully navigating the complexities.'* Marc 
 Galanter notes that “laments about commercialization and the loss of 
 professional virtue have recurred regularly fora century,” but the ques- 
 tion now is whether, as he puts it, “the present ‘crisis’ is the real thing.” “ 
 If recent consensus documents produced by the American Bar Associa- 
 tion are a guide, the bar certainly appears to be troubled about a crisis 
 or the perception of one, and the response of these documents is to pro- 
 mote greater professionalism. 
 
 I think that this response is inadequate and largely misdirected. To 
 avoid misunderstanding, I emphasize my beliefs that the rule of law is a 
 genuine, public good and that lawyers should be skillful professionals. 
 In my own observation, the clients most likely to have incompetent rep- 
 resentation are those in the worst situations to have to suffer it. This is 
 wrong. It should not be allowed. However, the professionalism cam- 
 paign is an unsatisfactory response; competence ought to be the point 
 of departure and not the goal, ought to be the entry-level requirement 
 for all and not the upper limit of our longing. More important, much of 
 the campaign is self-defeating. Because professionalism is an “ism” of 
 the intrinsic, it cannot direct us beyond itself. Law and the legal profes- 
 sion at their best will not finally serve as sources for the perspective and 
 sense of direction that are needed. 
 
 In 1984 the aBa established a commission — the Stanley Commission — 
 in response to Chief Justice Warren Burger’s anxiety that “the Bar might 
 be moving away from the principles of professionalism.” '? The com- 
 mission hastened to investigate the subject and two years later returned 
 a report: “... Jn the Spirit of Public Service”: A Blueprint for the Rekin- 
 
 138 CALLED BY STORIES 
 
dling of Lawyer Professionalism.'* The title’s mixture of metaphors accu- 
 rately reflects the tenor of the contents. Spirit is overtaken by engineer- 
 ing, and the public is thought to be served by our becoming what we 
 were, only more so. Thomas Shaffer accurately distills the propositions 
 of the report: “The way to be a good person and a lawyer is (i) to be 
 professional and (ii) to be in the profession, to be of it.” "” 
 
 Subsequently, another aBA group, this one a “task force,” examined 
 how best to develop professionalism.’* It produced the professionally 
 celebrated MacCrate Report.” The task force spent many of the pages 
 of its report, and presumably much of its time, dealing with the prior 
 question of what constitutes the professionalism to be developed. The 
 answer, titled “Statement of Fundamental Skills and Values,” divides 
 lawyering into discrete parts and then subjects them to a form of di- 
 luted social-scientific analysis. The task force came to its assignment as 
 a task to be solved, and that is what came out of its work: lawyers as 
 task-consumed, problem-solving technocrats.” Its report portrays the 
 skills and values of attorneys in the way that a descriptive inventory for 
 an auto parts shop would list the contents of its shelves. Not only does it 
 separate values from skills, it places a much greater emphasis on skills — 
 ten of them as compared to four values, sixty-six pages as compared to 
 fourteen. 
 
 The difference in emphasis is qualitative as well as quantitative. The 
 first and primary of the four values is to have and apply the ten skills. 
 The fourth and last is to improve the skills that it is the first value to 
 have. As part of what the report calls the skill of recognizing and re- 
 solving “ethical dilemmas,” the report does say that lawyers should be 
 familiar with “sources of ethical rules,” including “aspects of ethical 
 philosophy” and a “personal sense of morality.” *! And it includes a little 
 section on the value of promoting justice, fairness, and morality.’* Pro- 
 fessionalism-as-technique, however, is the central trope of the report. 
 The task force undertook a preparatory survey of law schools to exam- 
 ine the way they teach skills. A footnote reveals that it did not trouble 
 to ask about ethics or values education, which the report refers to as 
 “values training.” ** Even as a subject for training, ethics and values 
 were not in mind. The report proceeds as though the professionalism it 
 commends is not itself an affirmation of desiccating values. 
 
 A more recent installment in the professionalism serial is more encour- 
 aging.”* This one was written by a committee asked to determine how 
 the new, celebrated sense of professionalism is to be inculcated.”° It 
 
 LAWYERS’ INDEPENDENCE 139 
 
embraces the “Statement of Fundamental Skills and Values” and refers 
 carefully to certain pages in the statement as though all that remained 
 for the committee to do was to work out details for instilling the values 
 contained in those pages. In fact, there is almost no substantive corre- 
 spondence between the report and the statement. The report is written 
 in a different language, with different metaphors and a wholly different 
 image of lawyering. It says that a professional lawyer is “an expert in 
 law pursuing a learned art in service to clients and in the spirit of public 
 service; and engaging in these pursuits as part of a common calling to 
 promote justice and public good.” *° 
 
 Included among the indicia of this professional lawyer are a capacity 
 for moral dialogue with clients, prudential wisdom, and economic tem- 
 perance (!). The report suggests that teachers may teach professionalism 
 by themselves being and being seen to be professionals of the desired 
 sort. In this committee’s hands, the technocratically proficient problem 
 solver is reborn as a learned artist called to serve others in all that she 
 does.”’ 
 
 This portrait of a lawyer is an improvement even on Robert Gordon’s 
 affecting notion of a lawyer reserving part of her persona for public pur- 
 poses. The committee’s learned servant is a whole person, all of whose 
 professional life—and not only a piece of it— belongs to public service 
 whatever the setting of her practice. The independence of such a lawyer 
 lies in “dedication to certain ideals as a way of life as part of a special- 
 ized group.” ** This dedication requires forswearing the pursuit of other 
 possibilities, hence the mention of economic temperance. 
 
 That no lawyer known to you fits the image does not impugn its va- 
 lidity. The point is what we would become. “Myth,” Robert Cover said, 
 “is the part of reality we create and choose to remember in order to re- 
 enact. .. . History is a countermove bringing us back to reality. . .. Only 
 myth tells us who we would become; only history can tell us how hard 
 it will really be to become that.” ”° 
 
 As it happens, however, there are such lawyers, historical and not 
 mythological, more than might be suspected. They are public-spirited 
 and learned. Some of them are also loving and economically temper- 
 ate to a fault. I have written the stories of a few, and many more are or 
 are becoming publicly familiar.’ Some represent clients who are poor, 
 others are in government service, and still others engage in the pri- 
 vate practice of general or business law. One unacceptable quality of 
 the technocrat—problem solver image is that it breaks faith with these 
 
 lawyers. 
 
 140 CALLED BY STORIES 
 
The image of the learned artist whose independence derives from 
 dedication to public service is a good and inspiring one. It inspires me, 
 and I have urged it upon colleagues and students. It is nonetheless lim- 
 ited because it, too, is ultimately bound by law — what the committee 
 refers to as ideals as a way of life at the bar and others call “norms 
 supplied by traditional and technocratic legalism” (Robert Gordon) *! 
 or the rule of law.’* This limit it shares with Chief Justice Burger, the 
 Stanley Commission, and the MacCrate Report. 
 
 Justice is one ideal sometimes promoted as a key aspect of profes- 
 sionalism, but lawyers generally think of justice as dependent upon law. 
 For example, an inscription on the Supreme Court building announces: 
 “Equal Justice Under Law.” And the preamble to the Model Code of 
 Professional Responsibility holds, in words that can scarcely be read 
 aloud sensibly: “The continued existence of a free and democratic so- 
 ciety depends upon recognition of the concept that justice is based upon 
 the rule of law grounded in respect for the dignity of the individual and 
 his capacity through reason for enlightened self-government. Law so 
 grounded makes justice possible.” ** With more blunt, Gallic simplicity, 
 Charles DeGaulle said: “I have no need to tell you that justice of any 
 sort, in principle as in execution, emanates from the State.” ** Justice 
 so conceived is, like professionalism at its best, unable to generate the 
 lift and momentum necessary to give the lawyer exit velocity from the 
 gravitational pull of a law-bound system of values. 
 
 Judge Richard Posner observes that lawyers tend to think of law as self- 
 enclosed and self-sustaining and that they then surrender the ability to 
 gain distance from it. The study of law presents its subject, he says, “as 
 something not to be questioned, as something that has always existed 
 and in approximately its contemporary form.” The consequence is 
 that shortly after entering law school the student loses perspective, 
 never to regain it.*° Thereafter the lawyer’s attitude toward law “is pious 
 and reverential rather than inquiring and challenging.” *” 
 
 I think that the study and practice of law do indeed incline us to 
 discard the worthy perspectives we have received from families, from 
 communities of profoundly political commitment, and—to the extent 
 that they are distinguishable — from communities of faith as well. Law 
 can be deeply deracinating in this way.”* 
 
 In the course of an ethnographic study conducted at the Harvard Law 
 School, Robert Granfield discovered that students replace their own 
 views, which they come to see as biased, with professional values per- 
 
 LAWYERS’ INDEPENDENCE I4I 
 
ceived as neutral.’” This often means absorbing a professional, detached 
 cynicism that students adjust to by assigning it value.*° Posner would 
 say that they come to venerate it. One student told Granfield that since 
 entering law school she had come to “realize that the system is set up 
 and you can’t change it. I’ve become really cynical. . . . ’m not sure 
 what’s right or wrong anymore.” *' Encouraging students to overcome 
 their debilitating prejudices is a worthwhile function of professional 
 education, Granfield observes, but encouraging them to accept the neu- 
 trality of a professional game as though it is necessary and natural has 
 the effect of disabling the idealists. They abandon “their previous aspi- 
 rations of ‘doing good.’ ” ** They are then forced to come to terms with 
 what they view as selling out.** 
 
 There is more to be said. Granfield discovered, as have I, a minority 
 of students who reject the dominant legal consciousness and are resis- 
 tant to cynicism.** (In my experience they have increased in number 
 since the early 1990s.) Granfield notes that these students do not come 
 to law expecting to find in it the content of justice and truth. They know 
 better. After they arrive, they are not confounded by the incoherence in 
 law and are instead empowered by it for the greater flexibility it allows 
 in constructing arguments. They view law as a tool to be used, and 
 they are thereby protected against cynicism. In contrast to the majority, 
 they identify with critical and justice-oriented approaches, and they are 
 active in challenging the law school establishment. They are also, Gran- 
 field reports, “vehement in their criticism of law,” and yet they graduate 
 into very active practices with legal services, labor organizations, and 
 grassroots community groups.” (Students of mine enter these kinds of 
 practices but also a great variety of others, including corporate law.) 
 
 Granfield found that these people are guided by political and by theo- 
 logical commitments in opposition to the professional values that are 
 pressed upon them.** They are vehement critics of law but not cynics, 
 and they become vigorous practitioners of law. I suspect that it is exactly 
 because these people are free not to be determined by law that they are 
 free to become mistrustfully yet actively immersed in it. They develop 
 freedom from the independence of professionalism. They are free to be 
 in but not of the law. 
 
 The freedom realized in the Gospel of John is not derived from the rule 
 of law or professional ideals. The penultimacy of law exposed in the res- 
 urrection allows John to be saturated with legal terms and formulas and 
 not to be determined by them. The dialectics of this freedom evident 
 
 142 CALLED BY STORIES 
 
in the text of the gospel—the no and yes—is reflected in the sharp- 
 edged, prophetic example of William Stringfellow’s relationship to law. 
 He felt the dialectics beginning with his entry into Harvard Law School 
 in 1953, long before Granfield’s study, then during his first practice in 
 East Harlem, and thereafter until his death in 1985.*” 
 
 Stringfellow was struck not only by the limitations of law but also by 
 its violent aggression as a fallen institution and instrument of death.** 
 He also saw that his law practice would condone or appear to condone 
 its violence. He could therefore never shelve the insistent, ironic ques- 
 tion of whether he would “have to renounce being a lawyer the better 
 to be an advocate.” *” 
 
 He could scarcely discern himself as a victim of the legal system (al- 
 though discernment came more readily when the FBI put him under sur- 
 veillance and examination). But his law practice provided him intimate 
 experience with the aggressions of law against others. His first experi- 
 ence was with the assault of law against black people in New York, and 
 he understood its meaning for himself: “If the American legal system 
 seems viable for me and other white Americans but is not so for citizens 
 who are black, or for many others, then how, as the dual commandment 
 would ask, in the name of humanity, can it be affirmed as viable for me 
 or for any human being?” °° 
 
 He believed that his practice not only risked advancing the aggres- 
 sion of the system but also put him at risk. Law is not a neutral tool. He 
 would say that just here is the danger for a lawyer who thinks of herself 
 as a learned artist. She may find it difficult to recognize her participation 
 in law as participation in politics, power, and violence.”! 
 
 So Stringfellow was clear-eyed about law and his practice of it, about 
 its risks to others and to himself. He always might have had to renounce 
 being a lawyer as he was free and ready to do. But he continued freely 
 in the work, for law is also a gift of God.* He said that he was not 
 called to be an attorney, because no profession or employment in itself 
 can constitute a vocation. He was instead called to be human—to be 
 human, not religious—and his work as a lawyer, like any work, could 
 be “rendered a sacrament of that vocation.” ** He celebrated this sacra- 
 ment with abandon. He found himself “free to advocate the cause of 
 one . ..as over against everyone and everything else in the world,” ** not 
 because the system of justice demands it but because, divested of self- 
 interest, he could interest himself fully in his clients. He could receive 
 them as gifts rather than as problems or bearers of problems.” 
 
 His freedom meant, too, that he could freely advance the rule of law, 
 
 LAWYERS’ INDEPENDENCE 143 
 
a fact that confounded people unaccustomed to a simultaneous no and 
 yes. Robert Kennedy planned to hold a conference on how lawyers 
 could better serve poor people. He had read one of Stringfellow’s books, 
 was moved by it, and sent around an aide to consult Stringfellow on the 
 conference subject. The visitor began with the confidence that String- 
 fellow would not be invited to speak at the conference because “You're 
 too radical.” In amused reward of such honesty, Stringfellow proceeded 
 with the interview.’° This was not the first time he had been called radi- 
 cal, but he always thought the label a mistake. He maintained that he be- 
 longed solidly within the American legal tradition and offered his prac- 
 tice of law as verification: 
 
 I have been an advocate for the poor, for the urban underclass, for 
 freedom riders and war resisters, for people deprived of elementary 
 rights: children, women, blacks, hispanics, native Americans, political 
 prisoners, homosexuals, the elderly, the handicapped, clergy accused of 
 heresy, women aspiring to priesthood. The consistent concerns of my 
 practice have been the values of the constitutional system, due process 
 of law, and the rule of law.*” 
 
 His practice was an intoxicated exercise of the freedom to be fully in 
 but not of law. 
 
 The word advocate bears emphasis in Stringfellow’s thought about re- 
 nouncing his profession of law the better to fulfill his vocation of ad- 
 vocacy. He believed that advocating the cause of the victims of society 
 exemplifies the Church’s work of intercession for anyone in need.”* He 
 had learned from his stay in Harlem, where he was an outsider among 
 outsiders, “that all human beings are outcasts in one sense or another. 
 It is only more vivid that people are outcasts in a place like Harlem.” ” 
 All of us need an advocate, and advocacy as intercession for those in 
 need can take lawyering as one of its several forms. Such advocacy is 
 the Church’s work, and the bar enjoys no monopoly in defining what it 
 is and who may take part in it. 
 
 For that matter, Emily Fowler Hartigan says, the legal system has no 
 more final say about the name /awyer than it does about the name adyo- 
 cate. The bar can revoke the license of a person who practices law by 
 vocation, but it cannot rescind her being a lawyer. For her to be declared 
 an outlaw “does not contradict the reality that it is she and true com- 
 munities that have the final power of naming” who she is. 
 
 Hartigan once heard Stringfellow talk about advocacy as making one- 
 self vulnerable on behalf of another, even unto death."! For a long time 
 
 144 CALLED BY STORIES 
 
afterward, she mostly read his work as prophetically stern and condem- 
 natory, and so did I. She has now come to a different understanding 
 that has given me, too, a different way to read him. We deceive our- 
 selves, she says, when we think “that there are people who can be con- 
 demned—and implicitly that it can happen to us. The deepest truth 
 of Stringfellow’s advocacy is that he was advocating for both us and 
 our clients to our internal Accusers.” In the practice of advocacy, we 
 “become vulnerable on behalf of another, and anOther [sic] becomes 
 vulnerable on our behalf. We are advocates, and we are met by the Advo- 
 cate.” * As a consequence, Hartigan says, the “prisoner whom the law- 
 yer sets free is, unexpectedly, most centrally herself.” ° 
 
 The lawyer becomes a witness in the midst of her lawyering in its 
 ordinary circumstances, and her practice points beyond itself to the 
 transcendent reality within which the person and the practice daily sub- 
 sist—as though within a womb. 
 
 Andrew McThenia notes that Stringfellow offered neither programs nor 
 prescriptions and did not exhort us to do anything: “He was merely 
 pointing to the reality of the resurrection.” “ That reality gave him his 
 independence and freed him to be a critical lawyer who could—exuber- 
 antly — devote himself to others in his practice. This I read as a reflec- 
 tion of the Gospel of John, which provides no formula for belief and no 
 list of things that believers are to do. Instead, at the critical juncture, it 
 represents the subversive, freeing resurrection to the reader.” 
 
 The Word was put to death by law. But the author of John does not 
 reject the law. As witness to the possibilities of its transfiguration, he 
 appropriates law as a language for the gospel. In spite of itself, law is 
 made a medium of the transcendent. That the gospel’s author writes like 
 a lawyer offers unexpected hope for what “lawyerlike” can mean. 
 
 LAWYERS’ INDEPENDENCE 145 
 
Epilogue 
 
 The Moses saga and the Gospel of John raise the question of authority, 
 and I have given it only passing attention. I return to it now not to bring 
 closure but to credit the continued, authorizing dynamics of the stories. 
 
 The text tells us that the Hebrew midwives feared God, but it does not 
 say how they came to do so or how they knew it was God they feared. In 
 their place in the exodus story, they have little to go on. God’s greatest 
 self-revealing acts— the voice from the bush, the exodus, and the Sinai 
 encounters — have yet to take place. The midwives subvert the ruling 
 power of the nation on meager, obscure authority. 
 
 There is far more narrative material relating to God’s authority for 
 Moses and Moses’ authority among the people, but it is discomfiting 
 and much remains inexplicable. When, from the flaming bush, God tells 
 Moses that He is sending him to Pharaoh to bring the people out, Moses 
 troubles about what the people will make of his claiming to speak for 
 this voice that he cannot identify and that is, except for the flames and 
 the bush, disembodied. He knows that his history and personal qualities 
 will not enable the people to recognize authority in him, certainly not 
 authority to speak for One who names Himself “I am who I am.” Moses 
 himself is unconvinced that he is or can be or should be the bearer of 
 the office the voice would bestow. Who is this who sends him, and who 
 is Moses that he “should go to Pharaoh, and bring the Israelites out of 
 Egypt” (Exod. 3:11)? 
 
 To the questions of authorizing identity and capacity, God answers 
 that He will be with Moses, “and this shall be the sign for you that it is 
 I who sent you: when you have brought the people out of Egypt, you 
 shall worship God on this mountain” (Exod. 3:12). The assurance Moses 
 seeks in the present will be given only in the future, retrospectively, 
 after the critical events, and then the history it relies upon will not be 
 dispositive. The works and wonders and crossing of the sea that God 
 says will happen do happen, and, for good measure, terrifying thunder, 
 lightning, trumpet blowing, and a smoking mountain all erupt at Sinai. 
 But none of this makes a more lasting impression on the people than the 
 tortures God visited upon Egypt made on Pharaoh. The people find in 
 their history no reason to refrain from devoting themselves to a manu- 
 factured calf. 
 
For Moses and the people there is to be no determinative, external 
 ground of certification, no overwhelming proof. The assurance sought 
 in the present will be given only in the future, and in that later time it 
 will come as a sign and not a certainty. And the sign itself will be circu- 
 lar and self-referential: only by engagement, only in the act of returning 
 praise to God, will Moses and the people have the sign, and then, be- 
 cause it is a sign, it will require believing and interpreting. Now, in the 
 present, when Moses must act, he has only word about the future: “This 
 shall be the sign.” After he brings the people out, he and they “shall wor- 
 ship God on this mountain,” and this will be the possibility for knowing 
 and certifying. But the worship will mean that, by then, he and they will 
 already be in the process of believing. And, because we have read on in 
 the story, we know from the worship at the mountain that the process 
 of believing is intimately bound up with the process of disbelieving. 
 
 God tried to kill Moses. Pharaoh was unimpressed with his creden- 
 tials. The people did not readily or steadfastly consent to his leader- 
 ship. And at the end, Moses is left out. Authority is not more settled for 
 Moses than for the people. Like the Israelites and their story, authority 
 is always underway, always in play. The law, written on portable stones, 
 mobilizes the people and has authority among them in its performance. 
 
 The Gospel According to John is “written so that you may come/con- 
 tinue to believe” (20:31). Because it is written to the end of believing, 
 James Muilenburg says, it is “pre-eminently a demonstrative gospel. It 
 seeks to prove and convince.” ' It is demonstrative, but I am not sure 
 that it seeks to prove and convince, or that proving and convincing are 
 the only or the best ways to persuade. Or that persuasion is in order. 
 The gospel surely does not attempt to prove, convince, or persuade 
 in scientific and social-scientific terms. John’s strategy is aesthetic and 
 representational. It is something more like Shakespeare convincing an 
 audience of Lear’s humanity and their own, something more like the 
 convincing drama that good trial attorneys produce. But not exactly 
 that, either. 
 
 When the prologue says that in the beginning was the Word and all 
 things came into being through him, it does not try to establish the truth 
 of the proposition. There are no presently available eyewitnesses. The 
 gospel could nonetheless offer arguments in support of the assertion. 
 It could make arguments from nature, from the things that came into 
 being to their maker. This is the kind of argument that natural theolo- 
 gians and physicists sometimes make. John refuses to be drawn into it. 
 
 EPILOGUE 147 
 
Nor does the prologue appeal for a willing suspension of disbelief. 
 Quite the contrary. It is a believing affirmation, and the author very 
 openly numbers himself among the believers right from the start. He is 
 no disinterested witness, and he says so. The truth of the prologue is the 
 same as that for the gospel as a whole. It is the truth of believing. It is 
 the truth for those who believe.” 
 
 This is not an expression of arrogance or privilege or inside communi- 
 cation among a select elite. The author writes to be read and understood 
 and to be joined by disbelievers like himself. And he writes to readers 
 as though they are also at the same time believers like himself. 
 
 There are later instances of this kind of strategy in the Church’s his- 
 tory, one of them provided by Anselm, the Archbishop of Canterbury 
 beginning in 1093. His Proslogion offers a proof for the existence of 
 God. Karl Barth remarked on the incredible assumption of the proof: 
 Anselm assumed that the outsider, whose doubt or denial he sought to 
 overcome, already held Christian dogma in common with him. He ap- 
 proached the unbeliever “as if there were no rejection of the revela- 
 tion,” * a move that prompted Barth to observe: “Divine simplicity and 
 the way of the most incredible deception have always run parallel, sepa- 
 rated only by the merest hair’s breadth.” * But Barth concluded that the 
 “as if” is “really not an ‘as if’ at all, but . . . the final and decisive means 
 whereby the believer could speak to the unbeliever.” ’ 
 
 The author of John is a gospel writer and is not the writer of a book 
 on theology like Anselm; he is an evangelist rather than an explicator 
 of the faith. But the approach to nonbelievers as if they are believers is 
 the same. Any other approach would constitute a betrayal of the gospel 
 writer's own experience and his story. Belief had been given him. It was 
 not his doing or the fruit of argument or the product of some inspiration 
 to self-improvement. It was a gift of words. It was a gift of the Word. If 
 believing is to happen to others, that, too, will be such a gift. 
 
 Following the example of the one in whom he believes, the gospel 
 writer thus assumes solidarity with unbelievers. He addresses them as 
 equals. With artistry and without apology, he tells the story with the as- 
 surance that, when others come to believe, he will not have been the 
 cause. He assumes the gift, as he must. Or, rather, he circulates the gift.° 
 He represents it in the legal drama of his narrative. As ably as he can 
 in words on the page, he offers what he has received in the way that he 
 received it. This is all he can do. This is the best that he can do. 
 
 He and his story have authority in the believing for which the story 
 is told. He has no authority to hand down and enforce commands. He 
 
 148 EPILOGUE 
 
has authority to authora story for the telling. Its beginning, middle, and 
 end is the authorizing Word. 
 
 When Abraham set out from Haran in obedience to God’s command, 
 all he had to go on was a promise: “I will make of you a great nation... 
 and in you all the families of the earth shall be blessed” (Gen. 12:2- 
 3). Abraham would have scant evidence of fulfillment. Rachel, Miriam, 
 and Moses would have little more in their lives, and the circumstances 
 in which the sagas leave them in death offer no more to the reader. But 
 the promise endures and gathers believers. 
 
 John’s account of Jesus’ last gathering with his disciples opens with 
 a strange scene. He washes their feet. It is a parable of his forthcoming 
 humiliation in death and a parable, too, of the self-sacrificial humility of 
 his life and the lives his disciples are to lead.’ His act is introduced with 
 an editorial statement of interpretive context: “Jesus, knowing that the 
 Father had given all things into his hands, and that he had come from 
 God and was going to God, got up from the table, took off his outer 
 robe, and tied a towel around himself” (13:3—4). The Word that was sent 
 forth has full authority and is returning. The resulting harvest that re- 
 mains is a small company of servants who are pariahs, like Jesus himself 
 and the outcasts in the sagas of the Hebrew Bible. 
 
 John’s account of the crucifixion furnishes Jesus’ dying words to his 
 mother at the foot of the cross and to the beloved disciple standing be- 
 side her: “He said to his mother, “Woman, here is your son.’ Then he 
 
 2 99 
 
 said to the disciple, ‘Here is your mother’ ” (19:26—27). The company 
 he leaves behind has the nature of a new family.* Their greatness is to 
 be read not in their number or in their political, military, or economic 
 power but in the humility of their service to others, the quality of their 
 binding together, and the authority of their story. 
 
 So the story holds. 
 
 EPILOGUE 149 
 

 
Acknowledgments 
 
 At the end of The Word and the Law, | offered a detailed account of my 
 work’s dependence upon others. Because those individuals and com- 
 munities have continued to sustain me in the meantime, I gladly re- 
 acknowledge my continuing indebtedness to them, and I thank those of 
 them and others who have contributed to this present project: 
 
 The University of Georgia School of Law and its deans, first Ned 
 Spurgeon and now David Shipley, provided welcome research grants 
 that made it possible for me to complete this book. I am grateful for 
 their support. 
 
 Wallace Alston, Robert Alter, June Ball, Scott Ball, Paula Cooey, 
 Sarah Ball Damberg, Tom Eisele, Emily Fowler Hartigan, Stanley 
 Hauerwas, Virginia McCormack, Alexander McKelway, Charles Plat- 
 ter, Tom Shaffer, Moody Smith, Reynolds Smith, Aviam Soifer, James 
 Boyd White, and Steve and Rachel Wizner read all or portions of earlier 
 versions of this volume and offered helpful, critical comments on them. 
 In some cases the comments were extensive, arose from very close read- 
 ing, and led me to undertake major, beneficial additions and revisions. 
 Notes to the present text specify instances where I have drawn directly 
 upon their work. Even as I write, I am freshly reminded of the rare gift 
 of their friendship and collegiality and am thankful. If 1 knew the names 
 of two anonymous Duke reviewers I would include them as well. I do 
 know Ted Lewis’s name and thank him for his continuing, much-needed 
 help with Hebrew. Carol Weisbrod had been a support, but her most re- 
 cent book, Butterfly, The Bride, came into my hands too late to take it 
 into account. 
 
 Two of the reviews of my last book were particularly imaginative and 
 helpful. Clark Cunningham explored the notion of lawyer as witness in 
 one; in the other, Robin West pressed the role of stories and the need to 
 address the subject of justice. They gave good criticism. The reconsid- 
 
 eration they prompted me to undertake helped set me on the way to this 
 book. 
 
 By providing opportunities in the form of lectures or faculty symposia 
 where I could put to the test early versions of parts of this book, I 
 am indebted to the Boston College School of Law (Aviam Soifer), the 
 University of Cincinnati School of Law (Tom Eisele and Dean Joseph 
 
Tomain), the Columbia Law School Legal Theory Workshop (George 
 Fletcher and Kent Greenawalt), the University of Mississippi School 
 of Law (Michael Hoffheimer and Barbara Sullivan) (Matthews Lec- 
 ture), the Northwestern University School of Law (Robert Burns), the 
 Rutgers-Camden Law School (Ed Chase and Roger Clark), the Society 
 of Biblical Literature’s Section on Biblical Law (Bernard Levinson, 
 Rachel Magdalene, Martha Roth), the University of Tennessee School 
 of Law (Tom Eisele, Joseph Cook, and Dean Richard Wirtz) (Alumni 
 Distinguished Lecture in Jurisprudence), and Trinity University (Paula 
 Cooey) (Willson Lecture). The faculties of these institutions, and in 
 some cases the student bodies as well, did me great honor and gave me 
 much help. Versions of my presentations at their schools were published 
 in the law reviews of the University of Tennessee School of Law (Juris- 
 prudence from Below, 61 Tenn. L. Rev. 749 [1994]) and the University 
 of Cincinnati School of Law (A Little Mistrust Now and Then, 66 Cin. 
 J. Rev. 877 [1998]). 
 
 Tammy Mettenburger and Vicki Mullis cheerfully suffered through 
 with me the preparation of the manuscript. 
 
 Dan and Sally Coenen and Bertis and Katherine Downs (as I have 
 noted before) and now Addie are the locus of a community that is very 
 like a family. They and especially my family in fact compose the matrix 
 for my writing. I prize the added professional relationship with Sarah 
 Ball Damberg that this project has provided. 
 
 152 ACKNOWLEDGMENTS 
 
Appendix 
 
 KA HO‘OKOLOKOLONUI KANAKA MAOLI 
 Verdict of the International People’s Tribunal 
 Hawai‘i, August 1993 
 (abridged, edited version) 
 
 The International People’s Tribunal, Hawai‘i, 1993, convened to con- 
 sider the rights of the Kanaka Maoli (indigenous peoples of Ka Pae ‘aina 
 Hawai7, the Hawaiian Archipelago). 
 
 The Charges, as they were formulated and presented to us by attorneys 
 representing the Kanaka Maoli plaintiffs, are as follows: 
 
 1. Impermissible interference in the internal affairs of a sovereign 
 people and nation. 
 
 2. Aiding and abetting a foreign coup d’état against the government 
 of a sovereign people and nation. 
 
 3. Annexation of a sovereign people, their nation and territory, 
 without their free and informed consent. 
 
 4. Imposition of statehood on a people, their nation and territory, 
 without their free and informed consent. 
 
 5- Illegal appropriation of the lands, waters, and resources of the 
 Kanaka Maoli. 
 
 6. Economic colonization and dispossession of the Kanaka Maoli. 
 
 7. Acts of genocide and ethnocide against the Kanaka Maoli. 
 
 8. Destruction, pollution, contamination, and desecration of the 
 environment of Ka Pae ‘aina. 
 
 9. Violations by the United States and its subsidiaries of their own 
 established trust responsibilities and other obligations toward the 
 Kanaka Maoli. 
 
 Over the course of the proceedings, the Tribunal found that it might con- 
 solidate certain of the charges. In essence, Plaintiff’s Charges 2 and 3 have 
 been combined as the Tribunal’s Charge 2; Plaintiff’s Charge 4 is thus the 
 Tribunal’s Charge 3; Plaintiff’s Charges 5, 6, and 8 have been combined as 
 the Tribunal’s Charge 4; Plaintiff’s Charge 7 thus becomes the Tribunal’s 
 Charge 5. Plaintiff’s Charge 9 has been dismissed as formulated insofar 
 as the Tribunal was unable to ascertain a lawful basis for U.S. assumption 
 of trust prerogatives in the first place; its substance is subsumed under 
 various of the Tribunal’s restructured Charges. 
 
 The Tribunal, as its name suggests, is a People’s Tribunal in the fullest 
 
sense of the term and is both an exercise of sovereign rights of the people 
 indigenous to Hawai‘i and an expression of their democratic preroga- 
 tive. The inspiration, organization, and funding of the Tribunal, as well 
 as its staffing, procedures, and operations, manifested at every stage the 
 will, activity, and special imagination of the people of the Kanaka Maoli 
 nation. This assertion is reflected in the sponsorship of the Tribunal by 
 more than one hundred groups and citizens’ associations, all of which are 
 dedicated in one way or another to the recovery and exercise of Kanaka 
 Maoli sovereignty. 
 
 It should be pointed out that the U.S. government was formally and 
 genuinely invited to participate in these proceedings, first of all, by a let- 
 ter from Dr. Kekuni Blaisdell, convener of the Tribunal, to the President 
 of the United States, dated July 31, 1991. This included an offer of a full 
 opportunity to respond to the charges. The invitation was renewed peri- 
 odically during the formal sessions, but no response has been received. 
 Absent U.S. governmental participation, the panel of judges tried on its 
 own to ascertain whether there were exonerating facts and legal argu- 
 ments available in relation to the charges being made on behalf of the 
 Kanaka Maoli. 
 
 THE PANEL OF JUDGES 
 
 Milner S. Ball, Caldwell Professor of Constitutional Law, 
 University of Georgia. 
 
 Hyun-Kyung Chung, Assistant Professor of Theology, 
 Ewha Women’s University, Seoul, Korea. 
 
 Ward Churchill (Keetoowah Band Cherokee), Rapporteur, 
 
 Associate Professor of American Indian Studies, University of Colorado 
 at Boulder. 
 
 Richard Falk, Albert G. Milbank Professor of International Law 
 
 and Practice and Fellow of the Center of International Studies, 
 Princeton University. 
 
 Lennox Hinds, Professor of Law, Rutgers University. 
 
 Te Moana Nui A Kiwa Jackson (Ngati Kahungunu and Ngati Porou 
 Maori), Chair, Director of Maori Legal Service, Wellington, Aotearoa 
 (“New Zealand”). 
 
 Asthma Khader, attorney, educator, journalist; member of the 
 Palestinian Rights Society and the National Committee for the 
 Protection of Children (Amman, Jordan). 
 
 Oda Makoto, novelist and literary critic; member of the Permanent 
 People’s Tribunal. 
 
 154 APPENDIX 
 
Sharon Venne (Cree), attorney, human rights advocate at the United 
 Nations since 1981; Rockefeller Fellow on indigenous legal systems. 
 
 LEGAL STANDING OF THE TRIBUNAL 
 
 The authority of the Tribunal and its Verdict ultimately rest upon the man- 
 date of the Kanaka Maoli people, the persuasiveness of the reasoning set 
 forth, and the evidence relied upon in response to the nine charges. The 
 Tribunal does not pretend in any sense to be a court of law that derives its 
 authority from the U.S. government or its subdivisions, or from any organ 
 of the United Nations. But neither should this Tribunal be viewed as an 
 innovation conceived for this situation, that is, as being without firm and 
 impressive precedent. 
 
 In fact, the formation of and respect for international people’s tribunals 
 is a growing practice in all parts of the world and is a sign of the deep- 
 ening solidarity of transnational democratic forces. Nations and citizens 
 have claimed the rights — following procedures outlined in international 
 law under U.N. Resolution 1503 (XLVIII)—to sit in judgment of states 
 and their governments, as well as of international institutions, in situa- 
 tions in which serious abuses of human rights and the rights of peoples 
 seem to be occurring on a large scale. 
 
 More than fifty such tribunals have been held to date, and there exists 
 in Rome the headquarters of the Permanent People’s Tribunal. 
 
 LEGAL POSTURE OF THE TRIBUNAL 
 
 The sessions of the Tribunal began and ended with sacred ceremonies, and 
 the panel of judges visited numerous sites of profound significance to the 
 identity of the Kanaka Maoli. Additionally, the Tribunal heard testimony 
 and received written and/or visual submissions from many representa- 
 tives of the people. The Tribunal was also guided by experts with special 
 knowledge relating to the various charges. 
 
 In substance, the Tribunal has been guided by reliance upon five dis- 
 tinct but related and mutually reinforcing conceptions of law, drawing 
 freely from each in developing its findings on the charges, as well as its 
 conclusions and recommendations for redress. These are: 
 
 Kanaka Maoli Law 
 
 The Kanaka Maoli ideas of law are embracing sets of convictions about 
 right action and righteousness on political, economic, and social rela- 
 tions. This Kanaka Maoli conception of law bears especially on relations 
 to land and water, which are essential to the identity and survival of 
 
 APPENDIX 155 
 
indigenous peoples and their nations and which deeply moved and im- 
 pressed the panel of judges. It is also relevant in giving special authority 
 to elders (the Kupuna) and spiritual leaders who clarify the essence of law. 
 
 International Law 
 
 It needs to be understood as a matter of history that international law 
 often served as an instrument to validate colonial rule and to uphold other 
 types of exploitative economic, political, and cultural domination. But 
 international law is also increasingly sensitive to the democratic claims 
 of peoples and nations that insist on the accountability of states and their 
 leaders. Especially relevant in this regard is the 1992 version of the Draft 
 Universal Declaration on the Rights of Indigenous Peoples. 
 
 U.S. Domestic Law 
 
 As we construe the charges, they raise three issues about U.S. domestic 
 law, including the law of the state of Hawai'i: 
 
 They challenge the validity of U.S. assertions of legal authority over 
 the Kanaka Maoli and their lands. They claim that the law of the United 
 States and the State of Hawai‘i are not binding on the Kanaka Maoli in- 
 asmuch as neither the United States nor the State of Hawai‘i have valid 
 jurisdiction over the Kanaka Maoli and their land. 
 
 In addition and independently, they maintain that, although U.S. law is 
 not binding on the Kanaka Maoli, it is binding on the United States and 
 that the United States has failed to abide by its own law. 
 
 Finally they propose that, to the extent the United States and state gov- 
 ernments have acknowledged Kanaka Maoli rights, they have not suc- 
 cessfully protected, implemented, or nurtured those rights. 
 
 The Law of Nations and Peoples 
 
 By initiative of peoples and nations, the experience of international 
 people’s tribunals has itself become a source of law. A framework for these 
 efforts, which emerged with the Nuremberg and Tokyo Tribunals of the 
 late 1940s, is contained not only in the aforementioned U.N. Resolution 
 1503 (XLVIII) but also in the 1976 Algiers Declaration on the Rights and 
 Duties of Peoples. 
 
 The Inherent Law of Humanity 
 
 In addition to other sources, there exists a higher law based on the search 
 for justice in the relations among persons and peoples and their nations; 
 
 156 APPENDIX 
 
as well, there is a law establishing the conditions for harmony between 
 human activity and nature, drawing on ideas of stewardship that exist in 
 many of the world’s great cultural traditions and that are especially em- 
 bodied in the cultures of indigenous peoples. 
 
 The Tribunal will have achieved its purpose if this Verdict is empower- 
 ing to the Kanaka Maoli and their inherent rights to self-determination, 
 to survival, and to enhancement of the value and validity of their highly 
 spiritual ways of life. It is our hope that acknowledgment of their rights 
 will begin the process of healing the open wounds produced by the many 
 varieties of colonial rule. 
 
 Charge 1 
 
 Impermissible Interference in the 
 Internal Affairs of a Sovereign Nation or People 
 
 This charge relates specifically to the actions of the U.S. government and 
 its agents against the Lahui Kanaka Maoli between 1790 and 1892. The 
 Tribunal viewed this charge as requiring not only factual evidence about 
 the alleged actions but also evidence on four related issues: 
 
 1. The life, culture, and sociopolitical structures of the Kanaka Maoli 
 peoples prior to large-scale arrival of nonnatives; 
 
 2. The existence of any pre-1790 law that may still shape the Kanaka 
 Maoli perception of their rights; 
 
 3. The existence of any engendering effect of such law on concepts of 
 nationhood and self-determination that would have allowed its jurisdic- 
 tion to extend to nonnatives entering upon their lands; and 
 
 4. Any Kanaka Maoli exercise of self-determination in treaty-making 
 and other international sovereign rights. 
 
 The Tribunal’s response to Charge 1 will address these general issues 
 relating to the sovereignty and self-determination of the Lahui Kanaka 
 Maoli (the nation or people). The Tribunal reserves to Charge 2 its find- 
 ings on specific actions of the United States from 1790 to 1892. (We view 
 those actions as part of a pattern that includes the climactic 1893 coup 
 d’état and 1898 annexation that form the basis of Charge 2.) 
 
 FINDINGS OF FACT 
 
 Kupuna and academics from many disciplines (both native and nonnative) 
 presented detailed evidence about their society and culture developed 
 over two thousand years in Ka Pae ‘aina Hawai t. With a population reli- 
 
 APPENDIX 157 
 
ably estimated at eight hundred thousand by the late eighteenth century, 
 the Kanaka Maoli had created a sophisticated sociopolitical system that 
 sought the protection of the /ahui (people), their ‘azna (land), and their 
 wat (water). The basis of that protection was a set of religious /legal pro- 
 scriptions expressing their philosophy of pono (harmony, balance, correct 
 behavior). The social structure was shaped by a sense of place within a 
 known and kapu lineage that regulated rights and responsibilities. 
 
 These relationships were in turn defined by the interdependent links 
 each had with the ‘ana and their waz. Thus, when the Tribunal was taken 
 to various sites, the local people welcomed us by placing themselves 
 within their lineage and by establishing links to the Akua, the land or the 
 waters that surrounded us. 
 
 The reaffirmation of these links reflected and validated the indivisibility 
 of Kanaka Maoli life: that nothing could exist (or be understood) in iso- 
 lation. The socioreligious norms and legal system that developed within 
 the collective were similarly inseparable from each other. In fact, law was 
 religion, religion was law, and both were the leitmotif of Kanaka Maoli 
 life. Just as people did not have dominion over the land and its creatures 
 but lived in and with them, so did they not live under the dominion of 
 their law but in and with it. 
 
 Kanaka Maoli Law 
 
 It is the considered view of the Tribunal that a further conception of the 
 term /aw that recognizes the validity of indigenous legal processes is re- 
 quired if the international community is to end the oppression of native 
 peoples. The testimony of many witnesses referred to the basic law of 
 Kapu, which defined, among other things, the sacredness of land and the 
 sanctity of burial sites and hezau (temple, religious site). 
 
 Other testimony explained the application of concepts such as malama 
 (to care for, protect) and kanawai (laws, or specific law relating to water). 
 This and other evidence clearly established the existence of a complex 
 legal system within Hawaiian society. The observance and implemen- 
 tation of various laws was an inherent part of the social behavior de- 
 termined by and expected within the total collective of Kanaka Maoli 
 culture. Many examples of sanctions imposed for breaches of law were 
 placed before the Tribunal, including instances of immediate dispatch of 
 persons for the wrongful taking of fish or other food resources. The weight 
 of evidence leads us to make the following statements of fact: 
 
 That a clearly identifiable legal process operated as an integral and inter- 
 related part of Kanaka Maoli life; 
 
 That there is an acknowledgment and application of the legal philoso- 
 
 158 APPENDIX 
 
phies that underpin that process still operating in the relationship and 
 attitudes of Kanaka Maoli to their land and natural resources; and 
 
 That the subsequent assertion by the United States that indigenous 
 rights (and law) were extinguished by annexation did not ipso facto make 
 it so in the mana ‘0 (thoughts) of the people. 
 
 A Concept of. Self-Determination 
 
 Two particular legal concepts of the Kanaka Maoli were helpful to the Tri- 
 bunal in determining whether they recognized a concept of self-determi- 
 nation. The first is the notion of ea. The evidence of Kupuna and other 
 experts illustrated an interwoven set of meanings for ea that illustrates 
 again the relational nature of Kanaka Maoli life and society. At a funda- 
 mental level, ea is life, any life. The sanctity of life places upon the people 
 an obligation that is a supreme, sovereign duty. When exercised through 
 the politico-religious sanctions of the people it denoted a constitutional 
 authority and state of independence. When exercised within the total col- 
 lective relationship, it denoted the mana or divine power to move heaven 
 and earth: the ultimate constitutional authority. 
 
 The second concept of relevance to self-determination is that of ma- 
 lama, or responsibility to care for and protect the land and people. Ex- 
 amples of the exercise of ea and application of malama by kings and mo 7 
 (high chiefs) clearly show that the Kanaka Maoli regarded themselves as 
 a nation capable of exercising the most basic powers of sovereignty: the 
 right and ability to defend and protect the people and the sacred lands on 
 which they lived. 
 
 What is also clear is that the nature and extent of this power was de- 
 finable only by the Kanaka Maoli. It grew from the complex lineage, reli- 
 gion, and law that were the gifts of the 4kua as accepted in the precedents 
 established by Kupuna. Hence, the right and powers of sovereignty and 
 self-determination were not extinguished by human acts of cession, an- 
 nexation, or conquest. Within this context it is equally clear that any non- 
 native person entering the lands of the Kanaka Maoli would be expected 
 and could be compelled to accept the jurisdiction of the collective. 
 
 International Exercise of Sovereignty 
 
 Three major treaties entered in evidence indicate both that the Kanaka 
 Maoli nation exercised the right of self-determination in the international 
 arena and that other states recognized that right. Two of the treaties are 
 particularly relevant to the Tribunal’s consideration of this charge: The 
 1826 Convention between Commodore Catesby Jones of the United States 
 and Kauikeaouli (Kamehameha III), King of the Hawaiian Islands; and 
 
 APPENDIX I59 
 
the 1850 Treaty of Friendship, Commerce and Navigation between Kame- 
 hameha III and the United States of America. 
 
 The Tribunal finds uncontradicted and established as fact the historical 
 descriptions of actions taken by the United States against Lahui Kanaka 
 Maoli from 1790 through 1887 (see Charge 2). 
 
 FINDINGS OF LAW 
 
 The Tribunal finds that the Kanaka Maoli during the period in issue were a 
 lahui, or sovereign nation or people, that they so considered themselves, 
 and that they were so considered by others, including the United States. 
 The Tribunal also finds that, during the period in issue, Lahui Kanaka 
 Maoli exercised self-determination and were considered as having the 
 right to exercise self-determination by themselves and by others, includ- 
 ing the United States. The Tribunal further finds that at no time during 
 the period in issue did the Kanaka Maoli relinquish their sovereignty and 
 right to self-determination. Finally, the Tribunal finds that the actions of 
 the United States that are the subject of this Charge were violations of 
 Kanaka Maoli sovereignty and self-determination, as we shall particularly 
 set out in the following section, Charge 2. 
 
 Charge 2 
 
 Aiding and Abetting a Coup d’Etat and Annexing a 
 Sovereign People, Their Nation, and Territory 
 
 This Charge concerns the fundamental sovereignty inhering in the Ka- 
 naka Maoli people with respect to the governance of their own nation. 
 Annexation is a crucial issue because if it occurred as alleged it would 
 purport to change the formal status of the Lahui Kanaka Maoli and the 
 effective rights of its people. 
 
 FINDINGS OF FACT 
 
 Based upon exhaustive documentation and oral testimony, the Tribunal 
 finds that by 1842 the United States had announced what came to be 
 known as the “Tyler Doctrine” in its Executive Statement on Foreign 
 Policy. This position, supported by the Congressional Committee on 
 Foreign Affairs, unilaterally declared that Hawai‘i was within “the U.S. 
 sphere of influence.” Further, the idea was articulated that the United 
 States should pursue its own perceived national interests in Hawai‘i by 
 “virtual right of conquest,” regardless of the desires of the Kanaka Maoli 
 Nation. It should be noted that the United States had long accorded to 
 
 160 APPENDIX 
 
the Kanaka Maoli nation formal recognition of its full and separate sov- 
 ereignty. Not the least evidence of this recognition are the Convention 
 between Commodore Catesby Jones of the United States and Kauikeaouli 
 on December 23, 1826, and the Treaty of Friendship, Commerce and Navi- 
 gation between Kamehameha III and the United States of America, sub- 
 sequently ratified by the U.S. Senate on August 19, 1850. 
 
 Nonetheless, in 1854, the U.S. government first sought to effect the an- 
 nexation of Hawai‘i. This effort to directly subordinate Lahui Kanaka 
 Maoli to the “American System” failed, largely because of massive and 
 concerted resistance by indigenous Hawaiians combined with diplomatic 
 (and potential military) opposition on the part of at least two European 
 powers, France and Great Britain. 
 
 Over the next three decades, Euroamerican entrepreneurs in Hawai‘i 
 lobbied more or less continuously for another annexation effort. They 
 were, by all appearances, concerned with avoiding U.S. sugar tariffs while 
 promoting transpacific travel, fishing, whaling, and other commercial 
 enterprises. In any event, their agenda meshed quite well with the U.S. 
 War Department’s desire to permanently secure a deepwater port as a base 
 of operations in the central and eastern Pacific. The U.S. government’s 
 consistent dispatch of gunboats to enforce sandalwood and sugar con- 
 tracts deemed invalid by Kanaka Maoli courts is compelling evidence of 
 the confluence of interests between U.S. public and private sectors. 
 
 There is strong evidence that, acting in collusion, U.S. citizens and gov- 
 ernment emissaries engaged in an extended series of seditious maneuvers 
 to undercut the viability of the Hawaiian Crown and otherwise render the 
 Kanaka Maoli nation vulnerable to increasing Euroamerican encroach- 
 ment. So successful was this program of subversion that in 1877 the U.S. 
 Minister to Hawai‘i claimed (wrongly in our view) that the Hawaiian 
 Islands had been reduced to little more than “an American colony.” By 
 1887, the United States had managed to impose the so-called Bayonet 
 Constitution and to force cession of the Pearl Lagoon (now Pearl Harbor). 
 By 1891 the Harrison administration was confident enough of eventual 
 success to resume efforts to annex the entire archipelago. 
 
 Ultimately, a group of Euroamerican businessmen residing in Hawai‘i, 
 calling themselves the “Honolulu Rifles” and headed by the planter Lor- 
 rin Thurston, resorted to the use of armed force in 1893. They seized 
 Kanaka Maoli governmental facilities, imprisoned Queen Lili‘uokalani, 
 and announced that she had been deposed. They anointed themselves the 
 “provisional government” of the “Republic of Hawaii” and named San- 
 ford Dole, a missionary’s son, the new president. This action was quickly 
 supported by the federal government, which directed the landing of a 
 detachment of marines to “restore order.” Such an instruction normally 
 implies intervention on behalf of a recognized and legitimate governing 
 
 APPENDIX I6I 
 
body, but U.S. force was deployed for precisely the opposite purpose: to 
 consummate the overthrow. 
 
 U.S. force was deployed again in 1895 to put down an attempt by the 
 Kanaka Maoli to reinstate the queen, an action that resulted in more than 
 two hundred indigenous leaders being imprisoned on charges of “trea- 
 son.” The Dole cabal consolidated its position. The federal government 
 opted to treat the Dole group as the sole “legitimate” authority in the 
 islands. It was this group, not the Kanaka Maoli, who approved and facili- 
 tated the long-sought annexation of Hawai‘i by the United States that was 
 confirmed by a joint resolution of Congress in 1898. 
 
 The Kanaka Maoli consented to none of these developments. It is a 
 matter of record that resentment and resistance were intense. Unlike the 
 citizens of Texas, the Kanaka Maoli were afforded no opportunity to dis- 
 approve of annexation by plebiscite. 
 
 President Grover Cleveland clearly acknowledged the lawlessness of 
 the U.S. military action in 1893. In his “Message on the Situation in 
 Hawaii” of December 18, 1893, the president said that the U.S. “armed 
 invasion” of Hawai‘i was both an illegal “act of war” and a “lawless occu- 
 pation.” 
 
 President Cleveland had earlier dispatched James Blount as a commis- 
 sioner to investigate the situation in Hawai‘i. Blount’s official report said 
 that the interaction of federal personnel with Dole’s plotters amounted 
 to “complicity with their plan” and that any future support extended by 
 the United States to the Dole group’s “provisional government” would 
 amount to the “countenancing of a wrong.” 
 
 In the judgment of the Tribunal the evidence supports the conclusions 
 that the Kanaka Maoli did not at any time during the period in question, 
 1790-1898, relinquish their right to self-determination. We note that the 
 Kanaka Maoli sense of themselves as a sovereign people in 1893 can be felt 
 in 1993 in the vitality of the continuing devotion to Queen Lili‘uokalani, 
 which found repeated, various expression in testimony presented to the 
 Tribunal. 
 
 The Tribunal is of the view that the destructive acts of the United 
 States from 1790 through 1898 were aggressions against Kanaka Maoli 
 sovereignty. Representatives of the United States finally overthrew the 
 Hawaiian government but did not and could not end the sovereignty 
 of the people. The Tribunal is persuaded, on the basis of overwhelming 
 evidence — written, spoken, performed, and presented in tears and pain- 
 ful silences—that Kanaka Maoli sovereignty is a powerful, continuing 
 reality. The overthrow or alteration of a government does not destroy the 
 underlying sovereignty of the people absent their unqualified, clearly ex- 
 pressed consent. 
 
 162 APPENDIX 
 
It is to be noted that notions of consent have, in the application of West- 
 ern colonial law, omitted consideration of whether indigenous peoples 
 understood the implications and consequences of their consent as per- 
 ceived by outsiders. The Tribunal therefore holds the view that assertions 
 of “consent” must be judged against the procedures and law of the in- 
 digenous peoples concerned. 
 
 The Tribunal received no evidence that, in the long history of claims 
 of Kanaka Maoli “consent,” the United States gave any thought at all to 
 Kanaka Maoli understanding of consent or Kanaka Maoli procedure and 
 law for obtaining consent. (For example, there was no evidence that the 
 United States ever attempted, as this Tribunal has, to obtain the views of 
 the Kanaka Maoli at sites and through forms of their choosing, on the 
 terms of their aloha and great generosity.) 
 
 FINDINGS OF LAW 
 
 As matters of law, the Tribunal concludes that: 
 
 Throughout the period of time in issue the Kanaka Maoli were a lahui 
 or nation or people who had a sovereign right to self-determination; 
 
 The Kanaka Maoli never consented to a surrender or usurpation of their 
 sovereignty and right of self-determination; 
 
 U.S. assertions of jurisdiction over the Kanaka Maoli and their lands 
 were illegitimate offenses against their sovereignty and right to self- 
 determination. Specifically, the circumstances surrounding the 1893 coup 
 d’état, the 1898 annexation of Hawai'i, and the chain of events leading up 
 to these acts violated the inherent and fundamental sovereign rights of 
 Lahui Kanaka Maoli. Insofar as these rights were formally and repeatedly 
 recognized through treaties and agreements, counterarguments based on 
 the notion of terra nullius do not apply. 
 
 Hypothetically it can be argued that, under customary international 
 law prior to the postwar decolonization movement, one sovereign could 
 acquire “legal” sovereignty over another through conquest, cession, or 
 adjudication. However, the Tribunal finds no evidence that Hawai‘i was 
 conquered or that the United States acquired it through adjudication. 
 
 Finally, no evidence exists that, other than in the case of the Pearl 
 Lagoon, a deed of purchase or treaty ceding jurisdiction was executed 
 between the United States and any lawful representative of the Kanaka 
 Maoli people. 
 
 Additionally, the Tribunal finds that no principle of law, logic, or moral- 
 ity can serve to justify the unlawfulness of the United States in its viola- 
 tion of the sovereign rights of the Lahui Kanaka Maoli. 
 
 Further and in particular, the Tribunal finds as follows: 
 
 APPENDIX 163 
 
A. Violations of Kanaka Maoli Law 
 
 The entire pattern of conduct on the part of the United States in support- 
 ing a foreign coup d’état against Queen Lili‘uokalani and annexing the 
 Hawaiian Islands represents a gross violation of traditional Kanaka Maoli 
 law. 
 
 B. Violations of U.S. Domestic Law 
 
 The Tribunal finds that actions of the United States during the period in 
 issue were violations of its own fundamental law as expressed in the Dec- 
 laration of Independence and the U.S. Constitution. The Tribunal finds 
 that, since U.S. jurisdiction over the Kanaka Maoli and their lands has no 
 legitimate basis, U.S. law is not binding on the Kanaka Maoli. Nonethe- 
 less, U.S. law is binding on the U.S. government, which describes itself as 
 “a government of law and not of men.” 
 
 The Tribunal therefore finds that the aggressive pattern of action of 
 the United States and its agents, culminating in the 1893 coup and the 
 1898 annexation without Kanaka Maoli consent, was a violation of two 
 of its fundamental commitments, expressed in its Declaration of Inde- 
 pendence: first, that all people are “created equal” and “are endowed by 
 their Creator with certain inalienable rights, that among these are life, lib- 
 erty, and the pursuit of happiness”; and, second, that governments derive 
 “their just powers from the consent of the governed.” The independence 
 that the United States declared for itself it denied to the Kanaka Maoli. 
 
 The Tribunal further finds that the actions by the United States and its 
 agents also violated the U.S. Constitution in the following particulars: 
 
 1. The Constitution’s Preamble states: “We the People of the United 
 States, in order to form a more perfect union, establish justice, insure do- 
 mestic tranquility, provide for the common defense, promote the gen- 
 eral welfare, and secure the blessings of liberty to ourselves and our pos- 
 terity, do ordain and establish this Constitution for the United States of 
 America.” 
 
 a. In a report to the President on the events of 1893, Secretary of State 
 W. Q. Gresham noted that the president’s commissioner to the Hawaiian 
 Islands, James Blount, “did not meet a single annexationist who expressed 
 willingness to submit the question to a vote of the people, nor did he talk 
 with one on that subject who did not insist that if the Islands were an- 
 nexed suffrage should be so restricted as to give complete control to for- 
 eigners or whites” (Report to the President from the Secretary of State, 
 October 18, 1893, House of Rep., 53d Cong., 2d sess., Ex. Doc. 47, p. x). 
 The Constitution depends for its legitimacy on the acceptance, support, 
 and participation of the people. “We, the Kanaka Maoli” have never con- 
 
 164 APPENDIX 
 
sented to be governed by the United States. The Tribunal finds that the 
 imposition of U.S. government and law upon the Kanaka Maoli without 
 their consent is a violation of the Constitution’s first premise. 
 
 b. In a message to the Congress concerning the events of 1893, Presi- 
 dent Grover Cleveland observed: “By an act of war, committed with the 
 participation of a diplomatic representative of the United States and with- 
 out authority of Congress, the Government of a feeble but friendly and 
 confiding people has been overthrown. A substantial wrong has thus been 
 done which a due regard for our national character as well as the rights 
 of the injured people requires we should endeavor to repair” (President’s 
 Message to Cong., Dec. 18, 1893, House of Rep., 53d Cong., 2d sess., Ex. 
 Doc. 47, p. xiv). Secretary Gresham, in his report to the president, asked: 
 “Should not the great wrong done to a feeble but independent State by 
 an abuse of the authority of the United States be undone by restoring the 
 legitimate government? Anything short of that will not, I respectfully 
 submit, satisfy the demands of justice” (Report to the President from the 
 Secretary of State, Oct. 18, 1893, House of Rep., 53d Cong., 2d sess., Ex. 
 Doc. 47, p. xxi). The Preamble to the Constitution makes it clear that one 
 of its chief purposes is the establishment of justice. The Tribunal finds that 
 this constitutional purpose has been subverted by the actions of the U.S. 
 government and its agents against the Kanaka Maoli. 
 
 2. Article I, section 8 of the Constitution placed in Congress the power 
 to declare war. President Cleveland noted that the 1893 coup against the 
 government of the Kanaka Maoli was an act of war and that it was under- 
 taken without the authority of Congress. The Tribunal finds that this act 
 of war was a violation of Article I, section 8. 
 
 3. Article VI provides that the Constitution “and all treaties made, or 
 which shall be made, under the authority of the United States, shall be 
 the supreme law of the land.” The listed aggressive actions of the United 
 States and its agents against the Kanaka Maoli from 1826 through 1898 
 violated several treaties cited in Plaintiff’s Charge 1 and 2 (in particular, 
 the Treaties of 1826, 1850, and 1875). The Tribunal finds that these actions 
 were therefore violations of Article VI of the Constitution. 
 
 4. Amendment V provides: “No person shall be . . . deprived of life, lib- 
 erty, Or property, without due process of law; nor shall private property 
 be taken for public use without just compensation.” The Tribunal finds 
 that the U.S. government violated the Due Process and Taking Clauses in 
 multiple ways in the actions under scrutiny. For example: 
 
 a. In 1826 U.S. gunboats enforced the payment of what were purported 
 to be private debts. There is no evidence that the debt contracts were 
 legally valid under either Kanaka Maoli or U.S. law. There is evidence that 
 they were enforced under authority of U.S. agents without either due pro- 
 cess or just compensation. 
 
 APPENDIX 165 
 
b. The 1893 coup by U.S. agents and the 1898 annexation not only de- 
 prived Kanaka Maoli of liberty and property but also constituted a gross 
 offense against fundamental fairness. The Fifth Amendment has been held 
 to require of the government not only proper procedure and payment of 
 appropriate compensation but also fundamental fairness in its treatment 
 of persons. This amendment says “person.” It does not say “citizen.” It 
 establishes a limit on the power of the U.S. government over, and extends 
 its corresponding protection to, any person whether a U.S. citizen or not. 
 The United States may not deprive Kanaka Maoli of their life, liberty, or 
 property without due process of law whether or not they are U.S. citizens. 
 The Kanaka Maoli do not have to accede to government by the United 
 States in order to claim the protection of the Fifth Amendment, which 
 establishes an inherent, legal limit on U.S. power. The U.S. actions against 
 the Kanaka Maoli violated the Fifth Amendment’s requirements of fun- 
 damental fairness, due process, and just compensation. 
 
 C. Violations of International Law 
 
 The Tribunal also finds that the U.S. actions at issue violate a range of 
 elements of customary international law, reflected in the U.N. Charter, to 
 wit: 
 
 Article 1. The purposes of the United Nations are: (1) To maintain 
 international peace and security; (2) To develop friendly relations among 
 nations based on respect for the principle of equal rights and self-determi- 
 nation of peoples and to take other appropriate measures to strengthen 
 universal peace; and (3) To achieve international cooperation in solving 
 international problems of an economic, social, and cultural, or humani- 
 tarian character, and in promoting and encouraging respect of human 
 rights and for fundamental freedoms for all without distinction as to race, 
 sex, language, or religion. 
 
 Article 2 (4). The Organization and its Members, in pursuit of the Pur- 
 poses stated in Article 1, shall refrain in their international relations from 
 the threat or use of force against the territorial integrity or political in- 
 dependence of any state, or in any other manner inconsistent with the 
 Purposes of the United Nations. 
 
 Article 55. With a view to the creation of conditions of stability and 
 well-being which are necessary for peaceful and friendly relations among 
 nations based on respect for the principle of equal rights and self-determi- 
 nation of peoples, the United Nations shall promote: (a) higher stan- 
 dards of living, full employment, and conditions of economic and so- 
 cial progress and development; (b) solutions of international economic, 
 social, health, and related problems; and international cultural and edu- 
 cational cooperation; and (c) universal respect for, and observance of, 
 
 166 APPENDIX 
 
human rights and fundamental freedoms for all without distinctions as to 
 race, sex, language, or religion. 
 
 Article 73. Members of the United Nations which have or assume re- 
 sponsibilities for the administration of territories whose peoples have not 
 yet attained a full measure of self-government recognize the principle 
 that the interests of the inhabitants of these territories are paramount, and 
 accept as a sacred trust the obligation to promote to the utmost, within 
 the system of international peace and security established by the present 
 Charter, the well-being of the inhabitants of these territories. 
 
 Further, as is stipulated in the Charter of the Organization of American 
 States: 
 
 Article 17. Respect for and the faithful observance of treaties constitute 
 standards for the development of peaceful relations among States. 
 
 Article 18. No State or groups of States has the right to intervene, di- 
 rectly or indirectly, for any reason whatever, in the internal or external af- 
 fairs of any other State. The foregoing principle prohibits not only armed 
 force but also any other form of interference or attempted threat against 
 the personality of the State or against its political, economic, and cultural 
 elements. 
 
 Article 19. No State may use or encourage the use of coercive measures 
 of an economic or political character in order to force the sovereign will 
 of another state and obtain from it advantages of any kind. 
 
 Article 20. The territory of a State is inviolable; it may not be the object, 
 even temporarily, of military occupation or of other measures of force 
 taken by another State, directly or indirectly, on any grounds whatever. 
 No territorial acquisitions or special advantages obtained either by force 
 or by other means of coercion shall be recognized. 
 
 [Additional violations include those of Article 1 of the International 
 Covenant of Civil and Political Rights and International Covenant on 
 Economic, Social and Cultural Rights and of Article 1 of the 1933 Monte- 
 video Convention on the Rights and Duties of States.] 
 
 Charge 3 
 
 Imposition of Statehood on a People, Their Nation, and 
 Territory, Without Their Free and Informed Consent 
 
 Throughout the proceedings, abundant testimony, supported by con- 
 siderable documentary evidence, was entered to the effect that the Kanaka 
 Maoli never desired that their territory be subsumed by the United States 
 as a State of the Union. To the contrary, numerous statements were made 
 asserting that many indigenous Hawaiians still do not wish to be con- 
 
 APPENDIX 167 
 
strued as part of the United States. The Tribunal has considered this in 
 light of its understanding that the coerced or otherwise unconsenting in- 
 corporation of any people or their territory into the political-geographic 
 corpus of another represents a fundamental breach of international law. 
 
 FINDINGS OF FACT 
 
 In 1959, Hawai‘i, formerly a Pacific trust territory held by the United 
 States, was designated the fiftieth State of the Union. There is exhaustive 
 evidence that, in effecting this alteration in Hawaiian political status, the 
 United States failed to comply with U.N. requirements. Essentially, the 
 United States manipulated the procedure by which Hawai‘i was removed 
 from an internationally recognized list of Non-Self-Governing Territo- 
 ries—on which it had been placed by the U.N. in 1946—and scheduled 
 for formal decolonization. In the process, the United States conducted a 
 fraudulent referendum, from which the Kanaka Maoli voice was largely 
 excluded, and in which the nonnative population was inappropriately in- 
 cluded, in order to create the illusion that “the people” had democratically 
 determined they wished to become an integral part of the United States. 
 
 Although the illegality of the U.S. maneuvers attending Hawai‘i’s state- 
 hood has been amply documented by Valentine Mamokukaua Huihui Sr., 
 Mililani Trask, and others, both the federal government and the govern- 
 ment of the State of Hawai‘i officially persist in their contention that the 
 result is “binding.” Meanwhile, it is unquestionable that many grassroots 
 Kanaka Maoli, notably the members of the Ka Lahui Hawai‘i (Sovereign 
 Hawaiian Nation), Ka Pakaukau (a coalition of Hawaiian independence 
 groups), and similar organizations, manifest a growing and ever more de- 
 termined opposition to such pretenses. 
 
 The Tribunal finds that the imposition of U.S. statehood on the Kanaka 
 Maoli without their free and informed consent was, as a matter of fact, a 
 replication and extension of those aggressive actions of the United States 
 during the nineteenth century that culminated in the 1893 coup and 1898 
 annexation. 
 
 FINDINGS OF LAW 
 
 The Tribunal finds as matters of law that: 
 
 Throughout the period in issue the Kanaka Maoli were a /ahui or nation 
 or people who had a sovereign right to self-determination; 
 
 The Kanaka Maoli never consented to a surrender or usurpation of their 
 sovereignty and right to self-determination; 
 
 U.S. assertions of jurisdiction over the Kanaka Maoli and their lands 
 
 168 APPENDIX 
 
were illegitimate offenses against their sovereignty and right to self- 
 determination; current assumptions or assertions of such jurisdiction are 
 without a legitimate basis and are a continuation in the present of the 
 offenses against the Kanaka Maoli committed in the nineteenth century; 
 Imposition of statehood was offensive to law in particular, as follows: 
 
 Kanaka Maoli Law 
 
 The Tribunal finds that the U.S. performance in imposing statehood upon 
 Hawai'i represents an extraordinarily grave breach of Kanaka Maoli law 
 insofar as it was accomplished without the consent of indigenous Hawai- 
 ians and over their express and sustained objections. 
 
 U.S. Domestic Law 
 
 As the example of Texas demonstrates, an existing sovereign can be ad- 
 mitted to the Union, but only upon the prior, free, and informed consent 
 of the people. No such consent was given by or appropriately sought from 
 the Kanaka Maoli. In this regard, President Cleveland noted the marked 
 contrast in relations between the United States and Texas on the one hand, 
 and the United States and Hawai‘i on the other (President’s Message to 
 Cong., Dec. 18, 1893, House of Rep., 53d Cong., 2d sess. Ex. Doc. 47, 
 p- xiv). 
 
 The imposition of statehood, no less than the coup and annexation, 
 violated the fundamental commitments and law of the United States ex- 
 pressed in the Declaration of Independence and the Constitution’s Pre- 
 amble and Fifth Amendment (see Charge 2). 
 
 International Law 
 
 The tribunal further finds that the United States has violated several ele- 
 ments of international law in the course of making Hawai ‘ia state. [These 
 include Article 73 of the U.N. Charter, setting forth the treatment to be 
 accorded Non-Self-Governing Territories; the U.N. Declaration on the 
 Granting of Independence to Colonial Countries and Peoples (1960); the 
 Declaration on Principles of International Law Concerning Friendly Re- 
 lations and Co-operation among States in Accordance with the Charter of 
 the United Nations (1970), setting forth the duty to promote the principle 
 of equal rights and self-determination of peoples; and Article 14 (2) of 
 the U.N. Universal Declaration of Human Rights (1948), which holds that 
 people are not to be arbitrarily deprived of their nationality.] 
 
 APPENDIX 169 
 
Charge 4 
 
 Appropriation of the Lands, Waters, and Natural Resources, 
 and Economic Colonization of the Kanaka Maoli 
 
 During the course of the proceedings, the Tribunal heard substantial tes- 
 timony, well supported by documentary evidence, concerning the vital 
 importance of ma/ama ‘aina (care for the land) and malama kai (care for 
 the sea) in the traditional Kanaka Maoli worldview. A consistent theme of 
 the testimony has been that the political-economic order that the United 
 States imposed upon the Kanaka Maoli by annexation and colonization 
 has made it virtually impossible for indigenous Hawaiians to fulfill their 
 obligations as human beings to practice ma/ama ‘aina and malama kat. 
 These obligations are plainly fundamental to the Kanaka Maoli individual 
 and collective sense of being. The massive and systematic U.S. intrusions 
 bespeak a pattern of crimes against Kanaka Maoli humanity and their 
 world. 
 
 FINDINGS OF FACT 
 
 Witnesses devoted much testimony to explaining that a complex of re- 
 lated activities on the part of the United States, its corporations, and its 
 citizens has been responsible for the damage sustained by the Kanaka 
 Maoli and their environment. Witnesses devoted an almost equivalent 
 amount of testimony, all of it borne out by ample documentation, to dem- 
 onstrating how the Kanaka Maoli have sought in all good faith, over an 
 extended period and to no avail, to obtain at least minimal redress through 
 the courts of the United States and State of Hawai‘i. 
 
 Lands Designed for Kanaka Maoli Homesteading 
 
 Beginning in the early decades of the nineteenth century, U.S. citizens, 
 with the direct or indirect support of their government, began to replace 
 and therefore destroy the traditional Kanaka Maoli land tenure system. 
 They did so through such acts as the Great Mahele of 1848. Their approach 
 was to advance the Western legal concept and practice of property owner- 
 ship. This is the tactic employed against American Indians and given ex- 
 pression in the 1887 General Allotment Act. The collectively held land 
 of Lahui Kanaka Maoli was converted into separate parcels that could be 
 individually owned and transferred. 
 
 A powerful, few nonnatives took over the bulk of the land. By the 1960s 
 47 percent of Hawaiian land was held by only seventy-two private owners 
 and 49 percent by state and federal governments. Of the 47 percent held 
 
 170 APPENDIX 
 
by seventy-two owners, “18 landholders, with tracts of 21,000 acres or 
 more, owned more than 40% ... and... on O‘ahi, the most urbanized of 
 the islands, 22 landowners owned 72.5% of the fee simple titles” (Hawaii 
 Housing Auth. v. Midkiff, 467 U.S. 229, 232 [1984]). (Subsequent actions 
 have dispersed land ownership but have done so without material change 
 in Kanaka Maoli holdings and participation.) 
 
 In 1921, for complex reasons including paternalism and economic self- 
 interest, the United States declared two hundred thousand acres of land in 
 the Hawaiian Islands to be set aside for homesteading by Kanaka Maoli. 
 These homelands have been the occasion for abuse of the Kanaka Maoli 
 in four ways, two at the beginning of the program and two in the way it 
 has been administered since: 
 
 1. The original acreage set aside was largely from “the worst lands in 
 the territory. It was remote, inaccessible, arid, and unsuitable for produc- 
 tive development” (Hawai'i Advisory Committee to the U.S. Comm’n. 
 On Civ. Rts., A Broken Trust, Dec., 1991, p. 2). The Tribunal’s own site 
 inspection (in one instance the only access was by helicopter) revealed 
 homelands located on hillsides that had been denuded by pre-1921 ex- 
 ploitation under Western economic interests and that were now robbed 
 of water by present Western and Eastern economic interests (contiguous 
 pineapple plantations, golf courses, and resorts). 
 
 2. Congress limited access to the homelands by establishing blood quan- 
 tum eligibility. Only those who can prove that they are of “50% or more 
 Hawaiian blood” qualify for homesteads. The Kanaka Maoli did not define 
 themselves by blood quantum, a definition imposed from the outside. Tes- 
 timony before the Tribunal revealed that, of those who are Kanaka Maoli 
 by this imposed definition, many find it impossible to produce the kind 
 of written documents required by Western law to prove their heritage. 
 Testimony given the Tribunal also revealed that the blood quantum stan- 
 dard has a pernicious effect that may also indicate an originally perni- 
 cious intent. While the Kanaka Maoli presently constitute some two hun- 
 dred thousand of the one million island population, only five thousand 
 are “pure” Kanaka Maoli by the U.S. standard, and they are expected to 
 be reduced to almost none by the year 2044. In another fifty years, there 
 may be few people remaining who are eligible for the homelands under 
 the imposed blood quantum standard. 
 
 3. In 1991, seventy years after they were set aside, distribution and use 
 of the homelands remained a scandal. According to one official investi- 
 gation, only 17.5 percent of the total available lands have actually been 
 placed in the hands of homesteaders, although there is a waiting list of 
 some twenty thousand. “At the same time, over 62 per cent of the lands 
 are being used by non-natives, often for minimal compensation. Espe- 
 
 APPENDIX I7I 
 
cially egregious is the continued questionable use of valuable homelands 
 by the U.S. Government, with virtually no compensation to the trust. 
 These include some of the most suitable lands for development of homes” 
 (Hawai‘i Advisory Committee to the U.S. Comm’n on Civ. Rts., A Broken 
 Trust, Dec. 1991, Letter of Transmittal, unpaginated). Of the homelands 
 that are productive and well located, all that the Tribunal saw are in the 
 hands of the nonnatives. 
 
 Not the least painful testimony received by the Tribunal concerned the 
 denial of their lands to the Kanaka Maoli, the frustration of their repeated 
 attempts to live on their lands, and the massive, ecologically incompat- 
 ible use of their designated lands by others. The Tribunal was especially 
 moved by the very real pain felt by the Kanaka Maoli in consequence of 
 the state and federal practice of dangling before them the promise of their 
 homelands but denying to them meaningful, real opportunity to home- 
 stead it. 
 
 Continuing to deny that opportunity while punishing those who make 
 their own way onto their land—jailing “squatters,” tearing down their 
 homes and cultural centers, destroying their gardens —is a form of per- 
 secution especially acute for a people whose being and spirituality is so 
 intimately bound to their land and water. Juridical means of relief for the 
 Kanaka Maoli in this situation appear to be either severely restricted or 
 nonexistent. For example, the Tribunal found it remarkable that a state 
 “Judicial Relief Act” provides for aggrieved Kanaka Maoli to bring a 
 homelands suit but mandates that any land or money recovered is to be 
 awarded, not to the successful plaintiff, but to the land trustees who are 
 likely to be the defendants. (“Actual damages” may be awarded to suc- 
 cessful plaintiffs, but it appears that “actual damages” do not cover either 
 the land sought or such things as thirty years of unsuccessful waiting for 
 a parcel. That is, actual damages as defined in Western common law are 
 likely to be either irrelevant or difficult of proof or both.) 
 
 Currently, there is no indication that the governments of the United States 
 or the State of Hawai‘i evidence a meaningful intent to restore any signifi- 
 cant amount of property to Lahui Kanaka Maoli or even to offer compen- 
 sation for it. To the contrary, substantial evidence suggests that, under the 
 rubric of “law and order,” both state and federal authorities have set out 
 on a course of visiting ever harsher penalties upon indigenous Hawaiians 
 who attempt to live on or otherwise use land set aside for them. 
 
 Desecration of Sacred Sites 
 Many indigenous peoples hold land to be sacred. In this, the Kanaka Maoli 
 
 are no exception. However, certain locations carry a special spiritual sig- 
 
 172 APPENDIX 
 
nificance for the Kanaka Maoli. The designation of Hawaiian Trust Lands 
 evidences no concern for the relative sacredness of various sites through- 
 out the islands. Indeed, the great majority of such locations were left out- 
 side the trust area boundaries with devastating results. For example: 
 
 On the island of Maui, there is an important burial site in the dunes at 
 Waihe‘e. A Japanese corporation, operating under sanction of the State of 
 Hawai'i, is constructing a golf course at this location. Already consider- 
 able excavation has occurred, and the sand has been sold to various resorts 
 to improve the sand quality of tourist beaches. The Kanaka Maoli have 
 sought unsuccessfully to enjoin this unearthing of the na iwi (bones) of 
 their ancestors. More broadly, indigenous Hawaiians have pursued, with 
 equal lack of success, a legislative remedy that would create buffer zones 
 against development around all traditional burial sites in the islands. 
 
 The recently constructed Kaua‘i Test Facility (kTF) at Barking Sands on 
 the island of Kaua‘i, along with portions of the adjoining Pacific Missile 
 Range Facility, was built directly atop the Nohili Sand Dunes, perhaps the 
 most important Kanaka Maoli burial complex in all of Hawai‘i. The oblit- 
 eration of graves in the areas where construction has occurred is virtually 
 complete. 
 
 The sacred island of Kaho‘olawe, impounded by the Navy as a bombing 
 range during World War II, has been subjected to more or less continu- 
 ous saturation with high explosives and other ordnance ever since. Even 
 a series of physical interventions by the Kanaka Maoli have failed to slow 
 the process of systematic devastation. 
 
 Given that these examples are drawn from several dozen comparable 
 situations reviewed by the Tribunal during the proceedings, the scope of 
 the problem of desecration is readily apparent. The Tribunal notes that 
 a recent U.N. study entitled Cultural Property of Indigenous Peoples deals 
 quite specifically with the question of preserving sacred sites in the face 
 of nonindigenous development schemes. The study leaves no doubt that 
 spiritual values attached to such sites by native peoples should receive 
 priority over the “use values” assigned them by others. 
 
 Military Use of Lands 
 
 Since its inception in 1778, when a U.S. warship first arrived in Hawaiian 
 waters, the federal relationship to Hawai‘i has been military at its crux. 
 Approximately one-quarter of the island of O‘ahu is presently reserved 
 for use by the military, as is about 10 percent of the surface area of the 
 archipelago as a whole. Concentrations of U.S. military personnel in the 
 islands have served to inflate housing and other prices and thereby create 
 further material disadvantages to the Kanaka Maoli. Aside from its mo- 
 
 APPENDIX 173 
 
nopolization of a disproportionate quantity of land, the military’s use of 
 land has negative consequences. For example: 
 
 The Pearl Lagoon is Hawai‘i’s largest estuary and is the location of the 
 sixty-acre Pearl Harbor National Wildlife Refuge. However, a report pub- 
 lished in Environmental Hawat ‘indicates that activities in the contiguous 
 Pearl Harbor Naval Base have made the entire area “one of the most pol- 
 luted sites in the state.” Pearl Harbor is currently on the list of Federal En- 
 vironmental Superfund sites, but only six of several dozen known sources 
 of such contamination are slated for cleanup. The processes generating 
 the pollution remain as active now as they have been in the past. To date, 
 all Kanaka Maoli efforts to address the problem through U.S. courts have 
 been rebuffed under the rubric of “National Security.” 
 
 The ancestral ahupua ‘a of Mana, in Kaua‘i’s Polihale State Park, is con- 
 sidered by the Kanaka Maoli to be a prime location for reestablishment of 
 a traditionally oriented indigenous community. Efforts to establish such 
 a community have been blocked by the desire of the military to utilize 
 the same land as a safety zone around the Pacific Missile Range Facility. 
 Among the reasons this zone is needed is the periodic release of substan- 
 tial quantities of freon gas during firing exercises. Kanaka Maoli attempts 
 to halt such releases have been rejected by the courts on the basis of mili- 
 tary arguments that the emissions take place outside the jurisdiction of 
 the state legal system. 
 
 On balance, the Tribunal’s examination of the circumstances attending 
 U.S. military utilization of the Kanaka Maoli landbase leads unerringly to 
 the conclusion that the archipelago has already been affected by or is pres- 
 ently vulnerable to wholesale pollution by pesticides, herbicides, waste 
 oil, asbestos, chromic acids, pcBs, solvents such as TCE, and solid nuclear 
 waste. It must be noted in this connection that the Environmental Pro- 
 tection Agency currently lists thirty-one federal sites in the islands as ex- 
 tremely hazardous. This conservative, official count affords Hawai‘i the 
 dubious distinction of having the highest concentration of such sites of 
 any state. 
 
 Tourism 
 
 The first hotel in Waikiki, the Moana, was constructed in 1901. By 1993, 
 the volume of tourists exceeded seven million a year. The infrastructure 
 required to accommodate them utilizes vast quantities of land, water, and 
 other natural resources. 
 
 Most consumptive have been the forms of entertainment and recreation 
 peddled as “paradise” by nonnative interests to tourists. Golf is one ex- 
 ample: 
 
 174 APPENDIX 
 
A report published by the Office of State Planning of Hawai‘i in 
 1992 indicates that there were 65 eighteen-hole golf courses in operation 
 throughout the islands, each encompassing from 150 to 200 acres of land. 
 The report also indicated that the state intended to encourage the estab- 
 lishment of a further 102 golf courses as rapidly as possible. 
 
 A recent study released by the College of Tropical Agriculture and 
 Human Resources at the University of Hawai‘i determined that each 
 eighteen-hole golf course required, depending on the season and other 
 factors, between five hundred thousand and one million gallons of water 
 per day to be maintained in playing condition. 
 
 This and other studies have also found that golf course maintenance 
 also requires use of highly toxic substances, including a broad range of 
 pesticides, herbicides, and fungicides. For 1992, it is calculated that an ag- 
 gregate of 94,025 pounds of such herbicides as MsMa, glyphosate, oryza- 
 lin, oxidiazon, and metribuzin were dispersed across the imported lawns 
 of Hawaiian golf courses. Not only have these chemicals evidenced a sig- 
 nificant negative impact on Hawai‘i’s natural vegetation, they have also 
 demonstrated a noticeably negative impact on birds, land animals, and 
 freshwater fish in areas proximate to the greens. 
 
 The magnitude of such tourism-related environmental devastation shows 
 plainly that tourism is almost as great a threat to the well being of the 
 Kanaka Maoli as the U.S. military. 
 
 Nor can it be said that the Kanaka Maoli are to some extent compen- 
 sated for the loss and damage to their land by employment in the tourism 
 industry. Several studies indicate clearly that, aside from a relatively small 
 number of the most menial occupations, native Hawaiians are almost en- 
 tirely absent from the business. Indeed, as resorts have steadily bought 
 up Hawai‘i’s beaches, indigenous people have been increasingly denied 
 access to such “privileges” as swimming and surfing in their own waters. 
 On the related issue of impacts on Kanaka Maoli health, see the following 
 
 charge. 
 
 Plantations 
 
 Traditionally, a major aspect of the Kanaka Maoli economy devolved 
 upon the growing of taro, from which highly nutritious poz is made. Be- 
 cause taro is central to native Hawaiian well being, it is considered an 
 older brother and a god and is thus of utmost significance to Kanaka Maoli 
 spirituality. It is reliably estimated that more than 9,000 acres were under 
 taro cultivation prior to the arrival of the first European in Hawai‘i. 
 
 By 1876, some twenty-five years after a treaty allowed Hawaiian-grown 
 sugar to be imported duty-free into the United States, the land devoted 
 
 APPENDIX I75 
 
to taro had been reduced to approximately 2,000 acres, and an estimated 
 12,000 acres of Kanaka Maoli territory had been consigned to the growing 
 of sugarcane in areas taken over by Europeans and Euroamericans. 
 
 In 1900, only about 1,300 acres remained of the original taro fields, 
 while more than 128,000 acres were given over to sprawling sugar plan- 
 tations. 
 
 By 1991, with more than 90 percent of the archipelago’s agribusiness 
 controlled by a handful of giant transnational corporations like Del Monte 
 and Dole, only 310 acres remained under taro cultivation. Over 220,000 
 acres were in sugar production, and another 130,000 acres were devoted 
 to producing pineapple and other alien cash crops. It must be noted that 
 Hawai‘i’s is the only irrigated sugarcane in the world. Water for sugar was 
 taken from the wetland taro farms. At present rates of diminishment, the 
 last taro patch will have gone out of existence in Hawai‘i before the end 
 
 of the decade. 
 
 Fishing Rights 
 
 Fishing was the second mainstay of the traditional Kanaka Maoli econ- 
 omy. In preinvasion times, indigenous Hawaiians relied not only on open 
 sea- and freshwater, but also, more importantly, on fishponds specially 
 built along the shore. These ponds, maintained for centuries, ranged in 
 size from less than an acre to several hundred acres. Their construction 
 required monumental labor by the people as a whole. A large pond on the 
 western side of Moloka‘ is a salient example. It was built with hundreds of 
 thousands of stones carried over steep mountains from the eastern side. 
 So important were these efforts to the Kanaka Maoli that the ponds came 
 to occupy a vital niche in their spiritual life. 
 
 While it is true that traditional fishponds have not as yet completely 
 disappeared—the Tribunal visited a functioning one of approximately 
 fifty acres —it is equally true that the great bulk of them have been de- 
 stroyed as nonnatives bought up prime beachfront properties through- 
 out the islands. For example, in 1901, O‘ahu had over one hundred fish- 
 ponds. By 1993, only two remained. The future of the ponds is anything 
 but secure. Property rights to the ponds are unsecured, and concentra- 
 tions of pollutants threaten their viability. 
 
 Freshwater and open sea fishing are not now viable options. The former 
 has been virtually destroyed by water diversion. The latter is constrained 
 by a combination of state and federal licensing requirements and the im- 
 pact of commercial and tourist fishing. 
 
 176 APPENDIX 
 
FINDINGS OF LAW 
 Kanaka Maoli Law 
 
 It is beyond dispute that the U.S. policy of near-total expropriation of 
 Kanaka Maoli territory has violated every conceivable aspect of tradi- 
 tional Hawaiian law pertaining to the relationship of the people to their 
 landbase. And it has violated Kanaka Maoli law concerning the burial 
 grounds of their ancestors and ceremonial sites. 
 
 U.S. Law 
 
 Alexis de Tocqueville observed about U.S. treatment of American Indi- 
 ans that “it is impossible to destroy men with more respect for the laws of 
 humanity” (Democracy in America, 355 [Henry Reeve text, rev. by Francis 
 Bowen, 1948]). Much the same may be said of U.S. treatment of the 
 Kanaka Maoli. The Tribunal is of the view, however, that the wrongs set 
 forth in this Charge do betray a fundamental lack of respect for law, U.S. 
 law as well as the law of humanity. 
 
 1. Due Process. By force or fraud, the United States or its citizens with 
 direct or indirect U.S. support wrested from the Kanaka Maoli all of the 
 natural resources and most of the labor that has produced the wealth of 
 Hawai ‘i. The Kanaka Maoli have received almost nothing in return. This 
 appropriation continues that of the nineteenth century and is no less a vio- 
 lation of the U.S. fundamental law than those found under Charge 2. 
 
 Specifically, these wrongs, when taken separately but more so when 
 taken together as a whole, contravene the commitments to equality and 
 to life, liberty, and the pursuit of happiness expressed in the Declaration 
 of Independence as well as the commitment to justice embodied in the 
 Preamble to the U.S. Constitution. These wrongs—separately but more 
 so as a whole —also specifically violate the Fifth Amendment to the Con- 
 stitution. As noted in Charge 2, the Fifth Amendment prohibits the gov- 
 ernment from denying due process of law to any person and from taking 
 property without just compensation. The Tribunal finds that the United 
 States has denied due process of law to the Kanaka Maoli in two ways. 
 
 a. The United States has denied due process of law in the substantial 
 sense. As the discussion of U.S. law under Charge 2 explains, the Fifth 
 Amendment requires fundamental fairness of the U.S. Government in 
 its treatment of any person. “Fundamental fairness” has been defined 
 in a variety of ways by the United States. Suffice it to say that the Tri- 
 bunal concludes that the massive appropriation set forth in this Charge is 
 wholly out of keeping with the exemplary traditions of the people of the 
 United States, the positive aspects of their history, and their realizations 
 
 APPENDIX 177 
 
of ordered liberty. We cannot escape the conclusion that this appropria- 
 tion, either effected by the United States or condoned by it, is a violation 
 of the Fifth Amendment’s guarantee that the U.S. government shall act 
 with fundamental fairness. 
 
 b. As explained in the discussion of the Fifth Amendment under Charge 
 2, that amendment also guarantees legitimate process and just compen- 
 sation. The Tribunal concludes that the life, liberty, and property taken 
 from the Kanaka Maoli was effected without legitimate process and with- 
 out just compensation. The Tribunal notes that the emphasis in the Con- 
 stitutional language should fall on the word “just.” The appropriations 
 outlined under this charge raise the question of what just compensation 
 may require in the circumstances of the Hawaiian Islands. According to 
 the law, customs, and traditions of the Kanaka Maoli, money is no com- 
 pensation for the seizure of the various kinds of property in issue. More- 
 over, what is “property” in Western legal concepts may be quite different 
 from the Kanaka Maoli equivalent to “property.” No compensation can 
 be just that fails to take Kanaka Maoli traditions into decisive account or 
 that fails to take a form suitable to the Kanaka Maoli. 
 
 2. Equal Protection. The equal protection of the law mandated by the 
 Fourteenth Amendment, like the protections of Fifth Amendment due 
 process, is owed to “any person.” But this duty, unlike that under the Fifth 
 Amendment, is owed to any person “within its jurisdiction.” The Kanaka 
 Maoli deny that the United States and the State of Hawai‘i have jurisdic- 
 tion over them. The Tribunal has found that there is no legitimate basis 
 for such jurisdiction. To cite the United States and the State for violations 
 of the Equal Protection Clause does not entail acceding to or legitimating 
 such jurisdiction. It is only to point out that the United States is in double 
 default: It unlawfully claims jurisdiction and then unlawfully implements 
 the jurisdiction that it unlawfully claims. 
 
 In establishing a blood quantum criterion for Kanaka Maoli homestead- 
 ing of their homeland, the United States has created a racial classification. 
 This is the sort of act that the Fourteenth Amendment was specifically 
 adopted to outlaw. The U.S. Supreme Court has found that similar clas- 
 sifications applied to American Indians are political rather than racial in 
 nature and are thus constitutionally permissible. Even if these decisions 
 are law within the United States, we find them inapplicable to the Kanaka 
 Maoli blood quantum classification. We so find on two grounds. 
 
 a. There is a substantial history of U.S. documents drawing a distinc- 
 tion between “native Hawaiians” and “whites.” That is, the history of 
 U.S.-Kanaka relations is marked by documented, official, U.S. distinctions 
 based on race. 
 
 b. The imposed Kanaka Maoli blood quantum standard does not arise 
 
 178 APPENDIX 
 
out of any political consideration. In the instance of American Indians, 
 blood quantum relates to tribal recognition. In Hawai'i, the standard has 
 no such political referent and can be explained as arising out of and func- 
 tioning towards a racial division. The Tribunal concludes that the blood 
 quantum standard would be a violation of the letter and spirit of equal 
 protection if the United States had jurisdiction of the Kanaka Maoli. Be- 
 cause there is no such legitimate jurisdiction, the Tribunal can only point 
 out the consistency of illegality in United States treatment of the Kanaka 
 Maoli from illegitimate assertion of jurisdiction to illegitimate implemen- 
 tation of it. 
 
 3- Thirteenth Amendment. The Thirteenth Amendment states: “Neither 
 slavery nor involuntary servitude, except as a punishment for crime 
 whereof the party shall have been duly convicted, shall exist within the 
 U.S., or any place subject to their jurisdiction.” This amendment applies 
 not only against federal and state governments but also against private 
 parties. Slavery and involuntary servitude are plainly outlawed. Even so, 
 this amendment again raises the question of jurisdiction. 
 
 It can be argued that the Kanaka Maoli—as an independent, sovereign, 
 self-determined entity—are located within the borders of the United 
 States but are not within its jurisdiction for Thirteenth Amendment 
 purposes. However, notwithstanding such jurisdictional arguments, the 
 Tribunal believes that the people of the United States would not counte- 
 nance their government enslaving people or subjecting them to involun- 
 tary servitude anywhere. 
 
 The wrongs set forth in this Charge appear to the Tribunal to constitute 
 exactly the kind of subjection of the Kanaka Maoli to involuntary servi- 
 tude that the Thirteenth Amendment was adopted to prevent. 
 
 It may be that the injuries discussed in this Charge constitute wrongs 
 that are not cognizable in the U.S. legal system at its present state of de- 
 velopment or that cannot be fully repaired by the legal remedies currently 
 available. This is not to say that the U.S. legal system cannot grow to en- 
 compass them. We do not foreclose the eventuality that, at some future 
 time, redressable wrongs can be identified and cured in a manner not pres- 
 ently obvious. 
 
 International Law 
 
 The Tribunal finds that the United States is in violation of Article 17 of 
 the U.N. Universal Declaration of Human Rights (1948), which holds that 
 “(1) Everyone has the right to own property alone as well as in association 
 with others” and “(2) No one shall be arbitrarily deprived of his prop- 
 erty.” Further, the Tribunal finds that the actions and policies at issue vio- 
 
 APPENDIX 179 
 
late Article IX of the American Declaration of the Rights and Duties of 
 Man (1948): “Every person has the right to the inviolability of his home.” 
 Article X XIII of the American Declaration also states, “Every person has 
 a right to own such private property as meets the essential needs of decent 
 living and helps to maintain the dignity of the individual and the home.” 
 
 As pertains especially to the federal imposition of blood quantum stan- 
 dards for purposes of identifying indigenous Hawaiians and curtailing 
 their property rights, the United States stands in violation of customary 
 international law as codified in the U.N. International Convention on the 
 Elimination of All Forms of Racial Discrimination (1966). Although the 
 United States is not a signatory to this Convention, the Nuremberg Doc- 
 trine may be invoked as binding all governments, whether or not they are 
 signatories to specific instruments, to adhere to certain basic standards of 
 comportment. From this perspective, it must be observed that Article 2 
 of this Convention requires all States to: 
 
 (a) . .. undertake to engage in no act or practice of racial 
 discrimination . . . ; 
 
 (c) ... amend, rescind or nullify laws and regulations which have the 
 effect of creating or perpetuating racial discrimination wherever 
 it exists; 
 
 (d) . . . prohibit and bring to an end. . . racial discrimination by any 
 person, group or organization; 
 
 () . .. discourage anything which tends to strengthen racial division. 
 
 Article 4 (©) of the Convention also stipulates that States shall “not per- 
 mit public authorities or public institutions, national or local, to promote 
 or incite racial discrimination.” 
 
 The uses to which expropriated Kanaka Maoli territory have been put by 
 the U.S. military, various businesses, and the more general influx of non- 
 natives onto native lands violate provisions of the Universal Declaration 
 of Human Rights: 
 
 Article 18. Everyone has the right to freedom of thought, conscience 
 and religion; this includes the freedom to change his religion or belief, and 
 freedom, either alone or in community with others and in public or pri- 
 vate, to manifest his religion or belief in teaching, practice, worship and 
 observance. 
 
 Article 27 (1). Everyone has the right to freely participate in the cultural 
 life of the community, to enjoy the arts and to share in scientific advance- 
 ment and its benefits. 
 
 Similarly, U.S.-sanctioned military /corporate usage of Kanaka Maoli land 
 contravenes the principle advanced under Article XIII of the American 
 
 180 APPENDIX 
 
Declaration on the Rights and Duties of Man proclaiming, “Every per- 
 son has the right to take part in the cultural life of the community, to en- 
 joy the arts, and to participate in the benefits that result from intellectual 
 progress, especially scientific discoveries.” 
 
 Along with the expropriation of their land and concomitant oblit- 
 eration of their traditional economy, indigenous Hawaiians have been 
 consigned to employment, when they have been employed at all, that be- 
 speaks further violations of international law. Article XIV of the Ameri- 
 can Declaration holds, “Every person has the right to work, under proper 
 conditions, and to follow his vocation freely, in so far as existing condi- 
 tions of employment permit. Every person who works has the right to 
 receive such remuneration as will, in proportion to his capacity, and skill, 
 assure him of a standard of living suitable for himself and his family.” 
 This principle conforms closely to elements of the Universal Declaration 
 of Human Rights: 
 
 Article 4. No one shall be held in slavery or servitude; slavery and the 
 slave trade shall be abolished in all their forms. 
 
 Article 23. (1) Everyone has the right to work, to free choice of employ- 
 ment, to just and favorable conditions of work and to protection against 
 unemployment. 
 
 (2) Everyone, without any discrimination, has the right to equal pay for 
 equal work. 
 
 (3) Everyone who works has the right to just and favorable remunera- 
 tion ensuring for himself and his family an existence worthy of human 
 dignity, and supplemented, if necessary, by other means of social pro- 
 tection. 
 
 Given the root level at which U.S. juridical doctrine and judicial practice 
 deviate from international standards on matters of import to indigenous 
 people, the Tribunal is of the view that it will be necessary for the Kanaka 
 Maoli to pursue legal venues outside the framework of the present U.S. 
 system, as well as within it, until such time as U.S. law achieves sufficient 
 maturity and scope to respond fitly to their property related claim. 
 
 Charge 5 
 Acts of Genocide and Ethnocide against the Kanaka Maoli 
 The testimony received by the Tribunal, and much of the written material 
 submitted in support and amplification of this testimony, made continual, 
 
 specific reference to “genocide” to describe the ongoing processes visited 
 on the Kanaka Maoli. Although witnesses addressed many different as- 
 
 APPENDIX I81 
 
pects of the issue and approached it from many different perspectives, 
 they identified as genocide the complex, sustained series of actions and 
 policies on the part of the United States that has caused catastrophic dam- 
 age to Kanaka Maoli society in its religious and national dimensions and 
 that threatens the very existence of indigenous Hawaiians as an identifi- 
 
 able human group. 
 
 FINDINGS OF FACT 
 
 During the century following initial U.S. contact with the Kanaka Maoli 
 in 1790, the native Hawaiian population, which numbered some eight 
 hundred thousand at the outset, was reduced to fewer than forty thou- 
 sand. Much of the loss resulted from epidemics unleashed when Euro- 
 peans and Euroamericans introduced a variety of pathogens to which the 
 Kanaka Maoli had not been exposed and had no immunity. 
 
 Such bacteriological / viral contamination was not necessarily inadver- 
 tent. The effects of disease introduced by nonnatives into pristine envi- 
 ronments was known and had been widely reported upon with regard to 
 the Americas by 1790. (There are accounts of a 1763 instance in which a 
 British military commander, Jeffrey Amherst, issued written orders to his 
 subordinates to dispense smallpox-laden blankets to a group of Ottawa 
 Indians for the express purpose of “extirpating this execrable race.”) 
 
 Despite the outbreak of several major epidemics in the wake of early 
 nonnative incursions into Kanaka Maoli territory and despite general 
 knowledge of the sources of the disease, Euroamerican missionaries and 
 entrepreneurs advocated an increased rate of Euroamerican immigra- 
 tion to the islands. Correspondingly, the rate of Kanaka Maoli attrition 
 through disease was accelerated. Outsiders’ correspondence, diaries, and 
 other records contain statements of satisfaction with this circumstance, 
 and a tone of celebration at the prospect of the total disappearance of 
 native Hawaiians may sometimes be detected. 
 
 Many nonnatives took active steps to exacerbate the impact of disease. 
 For instance, during the middle of the nineteenth century, a group of 
 missionaries banded together on the island of O‘ahu to block construc- 
 tion of a hospital that would have provided medical assistance to un- 
 Christianized natives. 
 
 Euroamerican businessmen impressed thousands of Kanaka Maoli into 
 veritable slave labor in order to develop the lucrative sugar trade. The 
 rigors and deprivations attending work in the sugar camps rendered those 
 forced into it far more susceptible to the ravages of illness. Throughout 
 the entire period, the United States did not intervene on behalf of the 
 victims. Instead it intervened in support of some of the victimizers. For 
 example, between 1824 and 1844 United States gunboats were repeatedly 
 
 182 APPENDIX 
 
sent into Hawaiian waters to enforce payment on sandalwood contracts 
 involving private American interest. 
 
 As the Tribunal has already noted, the United States and its citizens have 
 come to Hawai'i with a primary interest in securing the islands’ lands, 
 waters, and attendant resources for their own use and profit. While the 
 exact nature of this interest has varied from group to group, a common 
 denominator has been the systematic and near-total dispossession and 
 displacement of the Kanaka Maoli from their traditional territories. 
 
 In thus pauperizing a people who had not only been entirely self- 
 sufficient, but in fact wealthy by any reasonable standard, the United 
 States has placed them as a group in a situation of perpetual physical 
 degradation. According to testimony, corroborated by both official and 
 unofficial studies and reports, as of 1988 40 percent of all Kanaka Maoli 
 families — including the vast bulk of those evidencing prominently native 
 features—lived at or below the poverty line. Correspondingly, indige- 
 nous Hawaiians chronically suffer all the standard indicators of poverty- 
 generated health problems, many of them directly related to poor diet and 
 environmental contamination. 
 
 As one analyst recently put it, “Native Hawaiians live in the . . . healthi- 
 est state [in the U.S.], but they have the shortest life-span among the 
 country’s ethnic groups.” They have been forced away from traditional 
 Kanaka Maoli foods such as poi and fish and enticed into a high-choles- 
 terol, high-calorie Western “junk food” diet. In consequence, poor diet 
 and obesity affect an estimated 65 percent of the native population. The 
 following points highlight the results: 
 
 Although indigenous people make up only 20 percent of the present 
 population in Hawai'i, they suffered 44 percent of infant mortality in the 
 state during 1990. 
 
 In 1920, when indigenous Hawaiians still retained a sufficient landbase 
 to feed themselves in accordance with traditional dietary preferences, 
 they accounted for 4.8 percent of all deaths from heart disease in the 
 islands. By 1980, after the loss of their taro and fish economy, they suffered 
 31.5 percent of such deaths. 
 
 Also in 1920, as the U.S. colonial system took firm hold in Hawai'i, the 
 indigenous population accounted for 3.3 percent of all deaths from can- 
 cer in the islands. In 1987, the rate of death from cancer was 299.1 per 
 100,000 among indigenous Hawaiians, as compared to an average of 132 
 per 100,000 among all the other population groups in the islands. 
 
 As compared to the general U.S. population, according to one report, 
 indigenous Hawaiians are “three times as likely to die of heart disease, .. . 
 twice as likely to die of cancer or a stroke. And they are six times as likely 
 to die of diabetes.” 
 
 APPENDIX 183 
 
Such physical ravages, endemic and structurally induced as they are, 
 should be considered in conjunction with U.S. political and economic 
 policies that have served over an extended period to supplant Lahui Ka- 
 naka Maoli’s social, economic and political institutions, obliterate the pre- 
 ponderance of indigenous Hawaiian material culture, and undermine its 
 capacity to sustain its spiritual belief system. 
 
 Taken as a whole, the situation is such that the Tribunal has no alter- 
 native but to conclude that the United States has relegated the Kanaka 
 Maoli to a de facto status of expendability in its own interest if it has not 
 consciously and deliberately targeted them for eventual eradication. 
 
 FINDINGS OF LAW 
 Kanaka Maoli Law 
 
 The Tribunal cannot imagine a greater transgression against the tenets of 
 traditional Kanaka Maoli law than to engage in the physical and cultural 
 destruction of indigenous Hawaiians themselves, whatever the motiva- 
 tion and whether accomplished directly or indirectly. 
 
 U.S. Domestic Law 
 
 The Tribunal is of the view that there is no greater departure from the 
 fundamental commitments of the people of the United States to liberty 
 and justice, expressed in their Declaration of Independence and Consti- 
 tution, and no greater offense against their Constitution’s promises of due 
 process and equal protection, than to conduct or allow the physical and 
 cultural destruction of the Kanaka Maoli. 
 
 International Law 
 
 The Tribunal finds that the U.S. actions and policies that have resulted in 
 the present circumstances suffered by the Kanaka Maoli represent a viola- 
 tion of international law. The 1948 U.N. Convention for Punishment and 
 Prevention of the Crime of Genocide is pivotal. Article II of that conven- 
 tion holds that it is a crime to commit the following acts “with intent to 
 destroy, in whole or in part, a national, ethnical, racial or religious group, 
 as such”: 
 
 (a) Killing members of the group; 
 
 (b) Causing serious bodily or mental harm to members of the group; 
 
 () Deliberately inflicting on the group conditions of life calculated to 
 bring about physical destruction in whole or in part; 
 
 (d) Imposing measures intended to prevent births within the group. 
 
 184 APPENDIX 
 
Article III of the Genocide Convention makes it clear that conspiracy to 
 commit and complicity in genocide are also criminal. The Tribunal finds 
 the U.S. government culpable with respect to each of these criteria. 
 
 It follows that, with respect to its record regarding the Kanaka Maoli, 
 the United States stands in violation of the U.N. Universal Declaration of 
 Human Rights (1948). Article 3 of that Declaration stipulates, “Everyone 
 has the right to life, liberty and security of person.” Article 5 of the Uni- 
 versal Declaration further states, “No one shall be subjected to torture or 
 cruel, inhuman or degrading treatment or punishment.” And Article 25 
 holds: 
 
 (1) Everyone has the right to a standard of living adequate for the 
 health and well-being of himself and his family, including food, clothing, 
 housing and medical care and necessary social services, and the right to 
 security in the event of unemployment, sickness, disability, widowhood, 
 old age or other lack of livelihood in circumstances beyond his control. 
 
 (2) Motherhood and childhood are entitled to special care and assis- 
 tance. All children, whether born in or out of wedlock, shall enjoy the 
 same social protection. 
 
 The United States is also in violation of its solemn commitments made 
 as a signatory to the 1948 Declaration of the Rights and Duties of Man. 
 
 RECOMMENDATIONS 
 
 Having heard extensive and compelling testimony on the islands of 
 O‘hau, Maui, Molaka‘i, Kaua‘i, and Hawai'i from August 13-19, 1993, 
 having received voluminous documentary evidence in support and cor- 
 roboration of the testimony, and having engaged in a number of site in- 
 spections during the same period, the People’s International Tribunal, 
 Hawai'i, 1993, has arrived at the findings delineated above and advances 
 the following recommendations: 
 
 1. The United States and the world should immediately recognize the 
 sovereignty and right to self-determination of Lahui Kanaka Maoli under 
 provision of the U.N. Charter, Universal Declaration of Human Rights, 
 American Declaration of the Rights and Duties of Man, International 
 Covenant on Civil and Political Rights and the International Covenant 
 on Economic, Social and Cultural Rights, among other elements of inter- 
 national law. 
 
 2. The United States and the community of nations should immediately 
 acknowledge the right of Lahui Kanaka Maoli to decolonization under 
 provision of U.N. Declaration on the Granting of Independence to Colo- 
 nial Countries and Peoples. 
 
 3. Kanaka Maoli lands, including all ceded lands, Hawaiian Home 
 Lands, and all other lands to which they have an historic claim, should be 
 
 APPENDIX 185 
 
returned to the control of Lahui Kanaka Maoli without delay. Return of 
 lands should be construed to include restoration of water and other asso- 
 ciated rights. Compensation of Lahui Kanaka Maoli for the deprivation 
 of use of and damage to its territory during the period of U.S. occupation 
 should be considered as a separate but closely related matter. 
 
 4. Jurisdiction over restored lands should be bindingly recognized as 
 belonging to Lahui Kanaka Maoli at the time of restoration. The terms 
 under which nonnatives might be allowed to remain on indigenous Ha- 
 waiian land should from that point forward be defined exclusively by 
 Kanaka Maoli law, in accordance with international law, custom, and con- 
 vention. 
 
 5- In compliance with its own Constitution and the International Con- 
 vention on the Elimination of all Forms of Racism, the United States 
 should immediately suspend utilization of “blood quantum standards” for 
 purposes of identifying native Hawaiians. Lahui Kanaka Maoli itself must 
 determine the composition of its citizenry in accordance with its own tra- 
 ditions, free from external interference. 
 
 6. The United States, in negotiations and other interactions with Lahui 
 Kanaka Maoli, should observe the provisions of the U.N. Declaration on 
 the Rights of Indigenous Peoples as the minimum standards to be applied. 
 
 7. The United States should immediately effect a valid ratification of and 
 adherence to the 1948 Convention on Punishment and Prevention of the 
 Crime of Genocide. Indemnification of the Kanaka Maoli for their human 
 losses during the period of U.S. occupation should be treated as a separate 
 but closely related matter. 
 
 8. All other wrongs suffered by the Kanaka Maoli at the hands of the 
 United States and its subsidiaries should be rectified in a manner deemed 
 satisfactory to the people themselves. 
 
 186 APPENDIX 
 
Notes 
 
 Prologue 
 
 —_ 
 
 The idea of the challenge of the Bible’s story-worlds comes from Wal- 
 ter Brueggemann, Theology of the Old Testament (Minneapolis, Minn.: 
 Fortress Press, 1997), 19, 712-29; and Leo Perdue, “Adhering to Israel’s 
 God,” Christian Century, May 20-27, 1998, 525 (reviewing Bruegge- 
 mann). 
 
 2 Robert Cover drew prophetically from the narrative of the Judaic tra- 
 dition in his legal scholarship. Too soon dead, he set an example now 
 followed by, among several others, Aviam Soifer, Martha Minow, Joseph 
 Singer, and Suzanne Last Stone. In the Christian tradition, William 
 Stringfellow long, faithfully, and affectingly followed the biblical stories 
 in his writing about and practice of law. Since Stringfellow’s death, 
 Thomas Shaffer has led theologically based exploration of the moment 
 narrative has for law. He has been joined by a growing company, in- 
 cluding Frank Alexander, Emily Fowler Hartigan, Andrew McThenia, 
 and those members of the Hamline Law School faculty who produce 
 the Journal of Law and Religion. The size and range of work in the field 
 is indicated by the latter journal, by the Fordham Symposium on the 
 Relevance of Religion to a Lawyer’s Work (papers published in 66 Ford- 
 ham L. Rev. 1075-1641 [1998]), and by the editors of and contributors to 
 Can a Good Christian Be a Good Lawyer? ed. Thomas Baker and Timothy 
 Floyd (Notre Dame, Ind.: University of Notre Dame Press, 1998). 
 
 The kind of attention Clark Cunningham, Richard Weisberg, Robin 
 West, and James Boyd White give to stories is formal precedent for the 
 way I follow biblical stories here, although their approaches are not ex- 
 pressly based in theology and although I flatter myself in making the 
 claim to companionship with them in the work. My oldest and most re- 
 warding debt among them is to White. 
 
 Artful storytelling —as practiced by Derrick Bell, Richard Delgado, 
 Mari Matsuda, Martha Minow, and Patricia Williams —has now joined 
 studies of economics, narrative, religion, and theology as a medium for 
 legal scholarship. 
 
 3 Paul Lehmann, The Decalogue and a Human Future (Grand Rapids, 
 Mich.: William B. Eerdmans, 1994), 23. 
 
 4 Arthur Danto, The Transfiguration of the Commonplace (Cambridge, 
 
 Mass.: Harvard University Press, 1981), 202. 
 
 5 Ibid. 
 
6 Ibid. 
 
 7 The stories authorize my retelling them and my receiving from others 
 the retelling of their stories and the stories of their authority. They also 
 authorize my radical, vulnerable openness to whatever may follow from 
 the sharing. 
 
 The stories hint intriguingly at a kind of courtesy extended by the God 
 of Israel to other gods and other gods’ people. Israel is certainly not to 
 worship other gods, for Israel belongs to yawn. But the ban may not 
 apply to other nations. 
 
 For example, Deuteronomy offers several clues in this direction. 
 “When you look up to the heavens and see the sun, the moon and the 
 stars, all the host of heaven, do not be led astray and bow down to 
 them and serve them, things that the Lord your God has allotted to all 
 the peoples everywhere under heaven. But the Lord has taken you and 
 brought you out of the iron-smelter, out of Egypt, to become a people 
 of his very own possession, as you are now” (Deut. 4:19-20). Israel is 
 not to worship other peoples’ gods (Deut. 29:16, 26), but God himself 
 allotted the other gods to the other peoples: “When the Most High ap- 
 portioned the nations, when he divided humankind, He fixed the bound- 
 aries of the peoples according to the number of the gods; the Lord’s own 
 portion was his people, Jacob his allotted share” (Deut. 32:8—9). (Ex- 
 cept where otherwise indicated, biblical quotations are taken from the 
 New Revised Standard Version as published in The New Oxford Anno- 
 tated Bible [New York: Oxford University Press, 1991].) 
 
 Patrick Miller observes that “the other nations of the world are clearly 
 understood as having been created by the Lord, with each apportioned 
 its territory and each allotted to one of the gods, that is, set under the 
 aegis of one of the gods. . . . Here is the strange word that only vis a vis 
 Israel are the other gods idols and condemned. . . . from the perspec- 
 tive of the other nations and in the divine economy, it is another matter. 
 They are accepted as belonging to the divine world ruled by the Lord of 
 Israel even though they are criticized; indeed they are actually allotted 
 to the other nations by the Lord. . .. Those gods that function as center 
 of value and meaning for other nations have their place. The religions 
 of that world were a part of the order set by the God of Israel. Not much 
 is said in these verses, but a note is sounded” (Deuteronomy, Interpreta- 
 tion: A Bible Commentary for Teaching and Preaching, ed. John Mays 
 [Louisville, Ky.: John Knox Press, 1990], 229). 
 
 8 See Miller, Deuteronomy, 88-89; David Tracy, The Analogical Imagina- 
 tion: Christian Theology and the Culture of Pluralism (New York: Cross- 
 road, 1981). 
 
 9 Paul Lehmann, The Transfiguration of Politics (New York: Harper and 
 Row, 1975), 24. 
 
 188 NOTES TO PROLOGUE 
 
— 
 
 4 
 
 1. Law and the “Mouth” for God 
 
 Peter Steinfels, “Looking Away from DeMille to Find Moses,” New York 
 Times, April 7, 1996, sec. 2, p. 36, col. 1. It is better for me to perform 
 my method of reading than to talk about it, but full disclosure requires 
 a word about my approach. I first learned the biblical sagas from my 
 mother and grandmother in a small Southern Baptist Church in a small 
 central Georgia town. And from there I carry and continue to be affected 
 in reading by love for the words and the wonder of them. But I can no 
 longer read only precritically. 
 
 My teachers at Harvard introduced me to “higher” criticism and 
 taught me to analyze biblical texts with an eye for their sources and their 
 history. And I remain deeply grateful to them for the gift of their rich, 
 heady education. They continue to guide me, although I can no longer 
 read only in their critical mode either. Most recently, biblical texts have 
 been freshly opened to me by practitioners of literary and of feminist 
 criticism. The literary critic Frank Kermode describes his own reading 
 as “postcritical” (The Literary Guide to the Bible, ed. Robert Alter and 
 Frank Kermode [Cambridge: Harvard University Press, 1987], 441). But 
 that won’t do as a description for mine because I cannot and would not 
 fully shed my precritical and critical educations. Nor can I avoid bring- 
 ing to the Bible what I have learned in the meantime from both Karl 
 Barth and Paul Lehmann about theology and from American law about 
 how to read texts closely to the ends of action, argument, and earning 
 a living. Meir Sternberg concludes that what contemporary reading of 
 the Bible needs is “a community or overlap rather than a division of 
 labor” (The Poetics of Biblical Narrative [Bloomington: Indiana Univer- 
 sity Press, 1985], 15). My own reading is communal and layered. It is 
 precritical, critical, and postcritical—and theological and lawyerly to 
 boot. 
 
 So I come to the text with all of my accumulated educations in read- 
 ing and with all of my accumulated experiences in living and with all 
 of the colorings, enrichments, shortcomings, and distortions of both. In 
 short, I come as who I am, and I cannot draw any meaningful distinc- 
 tion between my method and my identity, between my way of reading 
 and my way of being and acting. 
 
 Sternberg, Poetics of Biblical Narrative, 31. 
 
 In order to qualify as a pharaoh, a candidate had to be the child of a 
 marriage between a man and his father’s sister. 
 
 When I read this passage to Henry Schwarzschild over the telephone, 
 his response was: “What does it mean: God zried to kill him?” 
 
 I discuss Moses as prophet and judge below in notes 8 and 16. 
 
 There is a certain amount of risk in the use of the translation “mouth 
 
 NOTES TO CHAPTERI 189 
 
for.” It may entail a prejudicial assumption of meaning. The Hebrew peh, 
 “mouth,” may well have been something very different in ancient Israel 
 than the mouth is for us. In addition, “mouth for” may elicit misleading 
 or limiting associations: the lawyer as mouthpiece. The Oxford English 
 Dictionary indicates that “mouthpiece” is a late~-developing word, espe- 
 cially as slang for a solicitor. And “mouth for” scarcely has the original 
 sense of that part of a musical instrument made for blowing through. 
 
 The image of the mouth was employed by Judge Learned Hand in a 
 more elevated sense. He said that “the judge’s authority depends upon 
 the assumption that he speaks with the mouth of others” (quoted in 
 William J. Brennan, “The Role of the Court—The Challenge of the 
 Future,” in An Affair with Freedom, by William Brennan, ed. Stephen 
 Friedman [New York: Atheneum, 1967], 324). Hand’s point was that 
 judges are charged to decide cases according to law and not simply ac- 
 cording to the politics of the moment. They must therefore draw around 
 themselves the legitimating figures of the past. As Hand’s sentence de- 
 velops, however, various mixings of metaphors underscore his idea that 
 judges must enrobe themselves in something other than a contempo- 
 rary politics: “The judge’s authority depends upon the assumption that 
 he speaks with the mouth of others, that is to say, the momentum of 
 his utterances must be greater than any which his personal reputation 
 and character can command, if it is to do the work assigned to it—if it 
 is to stand against the passionate resentments arising out of the inter- 
 ests he must frustrate —for while a judge must discover some compo- 
 sition with the dominant trends of his times, he must preserve his au- 
 thority by cloaking himself in the majesty of an overshadowing past.” 
 Judge Hand’s use of the image of a “mouth of” is more ennobling than 
 “mouthpiece,” but it is nonetheless different from the Mosaic “mouth 
 for.” Moses’ authority depends upon his serving as mouth for another 
 greater than himself, but unlike Hand’s judge, he does not “cloak” him- 
 self with this mouth. Among other differences, the active party is God. 
 God makes Moses His mouth. And the act is not an attempt by God to 
 preserve His authority. It is an act of courtesy. 
 
 “Mouth for God” has the advantage of some relation to but no exact 
 match with other conventional terms for the lawyer. For example, it does 
 not exactly fit within any of Thomas Shaffer’s (and Robert Cochran’s) 
 categories: the lawyer as godfather, or as hired gun, or as guru, or as 
 friend. See Thomas Shaffer and Robert Cochran, Lawyers, Clients, and 
 Moral Responsibility (St. Paul, Minn.: West, 1994) (a useful book that, 
 like Shaffer's work generally, is a welcome broadening of the way we 
 customarily think about lawyers). 
 
 On the notion of representation, see Hanna Pitkin, The Concept of 
 Representation (Berkeley: University of California, 1967); J. Roland Pen- 
 
 190 NOTES TO CHAPTER I 
 
o ~n 
 
 nock and John Chapman, eds., Representation, Nomos X (New York: 
 Atherton, 1968). 
 
 On Aaron see chapter 6. 
 
 Moses is also “God for” Aaron. Although the designation elevates him 
 above Aaron, it also a reminder that Moses is, in turn, subordinate to 
 God. The texts later describe Moses as a prophet, but this is to specify 
 one of his functions as mouth for God. The nature of prophecy is thereby 
 clarified: a prophet is one who speaks the word of God and is not nec- 
 essarily one who predicts the future. God says to Moses: “I have made 
 you like God to Pharaoh, and your brother Aaron shall be your prophet” 
 (Exod. 7:1). As Moses is prophet for God, Aaron is prophet for Moses. 
 “Whatever the derivation of the word nabhi, prophet, the emphasis is 
 upon speaking not prediction” (D. M. G. Stalker, “Exodus,” in Peake’s 
 Commentary on the Bible, gen. ed. Matthew Black [New York: Thomas 
 Nelson and Sons, 1962], 213). Patrick Miller points out that “the cen- 
 tral characteristic that identifies Moses as the ideal prophet is his func- 
 tion as the mediator of the divine word” (“ “Moses My Servant’: The 
 Deuteronomic Portrait of Moses,” Jnterpretation 41 [1987]: 245, 248). The 
 “mouth for” metaphor comes from sentences attributed to the under- 
 lying J source, the so-called Jahwist (Stalker, “Exodus,” 213); the later 
 “prophet” identification is attributed to P, the priestly editors (ibid., 215). 
 The presence of God “is the basis of civilized life if handled properly, but 
 a raging, destructive force if misused” (David Damrosch, “Leviticus,” 
 in Alter and Kermode, Literary Guide to the Bible, 70). I have relied upon 
 Damrosch’s suggestive work here and later. But I do take issue with his 
 notion of “misusing” the presence of God. God is not a fissionable quan- 
 tity of uranium for the using or misusing. To think of God as usable is 
 to make the religious and false assumption of human ascendancy over 
 God. We do not “use” the power of God. See also Damrosch’s question 
 about how the holiness, the power of God, is to “be contained, so that 
 the people may be led and nurtured without being consumed?” (ibid., 
 79)- In the biblical stories the power of God is not contained after the 
 fashion of a controlled nuclear reactor. 
 
 See also Exod. 33:5. In some cases, the issue is how one stands with re- 
 spect to God ontologically, not geographically. A visitation, pagad, by 
 God might be looked on with either great anticipation or fear depending 
 on one’s faithful righteousness or standpoint (as among or not among 
 the chosen). 
 
 It is in the same manner that Bezalel (and Oholiab) is to be understood: “I 
 have filled him with divine spirit, with ability, intelligence, and knowl- 
 edge in every kind of craft, to devise artistic designs, to work in gold, 
 silver, and bronze, in cutting stones for setting, and in carving wood, in 
 every kind of craft” (Exod. 31:3—5). If Moses is mouth for God, Bezalel 
 
 NOTES TO CHAPTERI I9I 
 
may be thought of as hand for God. His handiwork is a medium for the 
 powerful presence of God. 
 
 No less than Moses, Bezalel and his construction crew worked with 
 exacting care (Exod. 36-39). “In this way all the work of the tabernacle 
 of the tent of meeting was finished; and the Israelites had done every- 
 thing just as the Lord had commanded Moses. . .. When Moses saw that 
 they had done all the work just as the Lord had commanded, he blessed 
 them” (Exod. 39:32, 43). 
 
 It is to be noted that craftsmanship — discipline, artistry — signifies, 
 arises from, and is directed toward the presence of God. In the same 
 sense that God gives speech to mortals, he also gives them art, culture, 
 and craft. The latter are forms of the former. 
 
 12. This is what Patrick Miller describes as “teaching to do” (Deuteronomy, 
 247). 
 
 13. Perhaps this is a very different practice of due process than Grant Gil- 
 more had in mind when he proposed that in “Hell there will be nothing 
 but law, and due process will be meticulously observed” (The Ages of 
 American Law [New Haven, Conn.: Yale University Press, 1977], 11). 
 
 14 God first speaks to Moses from a bush. The bush burns but is not con- 
 sumed. No one shall see God and live (Exod. 33:20). Similarly, when 
 Moses has been in conversation with God, his face shines and he must 
 wear a veil before the people (Exod. 34:29-35). 
 
 15 This first encounter was not preceded by a specific, authorizing injunc- 
 tion “Go to Pharaoh and say . . .” Was Moses’ first visit ultra vires? 
 
 16 After the exodus from Egypt and before the encounter at Sinai, Moses 
 acts as judge for the willing people. His caseload increases to become 
 a great burden. His father-in-law Jethro proposes that Moses appoint 
 other judges to decide the easy cases and to reserve to himself only the 
 hard cases. Jethro puts it this way: “You should represent the people be- 
 fore God, and you should bring their cases before God” (Exod. 18:19). 
 Such “representation before God” may constitute a form of mouth for 
 the people. However, Moses’ own explanation of his office is that “the 
 people come to me to inquire of God. . . . 1 decide between one person 
 and another, and I make known to them the statutes and instructions of 
 God” (Exod. 18:15—16). That is, his own understanding is that as judge 
 he represents God to the people. 
 
 17 Compare Deuteronomy 5:4-5 (“I was standing between the Lord and 
 you to declare to you the words of the Lord”) and Deuteronomy 5:22- 
 27 (“Go near, you yourself, and hear all that the Lord our God will say. 
 Then tell us everything that the Lord our God tells you, and we will 
 listen and do it”). 
 
 18 As would also be true of a treaty of the time, the writing preserves 
 the terms and allows them to stand as a reminder of the obedience 
 
 192 NOTES TO CHAPTER I 
 
20 
 
 21 
 22 
 
 23 
 
 due. On the relation of the Deuteronomic covenant to contemporane- 
 ous treaties, see Moshe Weinfeld, Deuteronomy, vol. 5 of The Anchor 
 Bible (New York: Doubleday, 1991), 1-11, 6—9. See also E. W. Nicholson, 
 “Covenant in a Century of Study since Wellhausen,” in Crises and Per- 
 spectives, Oudtestamentische Studien, no. 24 (Leiden: Brill, 1986), 54; 
 A. D. H. Mayes, “Deuteronomy 4 and the Literary Criticism of Deuter- 
 onomy,” Journal of Biblical Literature 23 (1981): 100. 
 
 Arthur Jacobson, The Idolatry of Rules: Writing Law according to Moses, 
 with Reference to Other Jurisprudences, 11 Cardozo L. Rev. 1079 (1990). 
 Exod. 24:12. The tablets of stone are the Bible’s third reference to writ- 
 ing. The second precedes it in the same chapter (Exod. 24:4), when 
 Moses writes the book of the covenant, the covenant code spoken in 
 Exodus 20:22—23:33. 
 
 When God first speaks the law at Mt. Sinai, the people “witnessed 
 the thunder and lightning, the sound of the trumpet, and the mountain 
 smoking” (Exod. 20:18), and it is then that fear drives them to ask Moses 
 to speak for God because they cannot bear the words when they are spo- 
 ken immediately by God. God deliberately speaks terrifyingly in this in- 
 stance to establish the authority of Moses— “that the people may hear 
 when I speak with you and so trust you ever after” (Exod. 19:9). 
 
 So Moses “drew near to the thick darkness where God was” (Exod. 
 20:21), and there God speaks the law to him. When Moses subsequently 
 returns to deliver the words to the people, he speaks them. When, after 
 hearing the words, the people agree to do them, Moses writes them 
 down (Exod. 24:3—4). Oxen are then sacrificed, half their blood is 
 dashed against the altar, the book is read, the people again promise to 
 do the words, and the remainder of the blood is dashed on them (Exod. 
 24:5—-8). The writing, like the companion blood shower, is sure to be 
 remembered. 
 
 Jacobson, /dolatry of Rules, 1108-9. 
 
 Jacobson’s point can be established in a different way by comparing the 
 Exodus version with that of Deuteronomy. The Deuteronomic sequence 
 begins in the same way. God writes the Ten Commandments on two 
 stone tablets (Deut. 4:13, 5:22, 9:10), Moses smashes them (Deut. 9:17) 
 and later makes two more (Deut. 10:1). However, in the Deuteronomic 
 account, God writes the second edition as well as the first (Deut. 10:2, 
 4). Afterward, Moses deposits the stones in the ark, “and there they 
 are” (Deut. 10:5). Although the Exodus text is not ambiguous, there is 
 nevertheless ambiguity in the differing accounts offered by Exodus and 
 Deuteronomy. 
 
 Jacobson, /dolatry of Rules, 1095. His argument is considerably more 
 elaborate than I have indicated. For example, he reads in Exodus two 
 designations of God: Elohim, who unilaterally hands down rules, and 
 
 NOTES TO CHAPTERI 193 
 
24 
 
 25 
 26 
 27 
 28 
 
 29 
 
 Yahweh, who interacts with other characters in the story. “If only Elo- 
 him writes, then characters have no role in creation. Moses must write in 
 order to befriend Yahweh, He must destroy and replace Elohim’s writ- 
 ing [even as he destroyed the golden calf]. But if Moses writes, then 
 people will bow down to the text as a graven image [as they bowed down 
 to the calf]. They will want Moses to be Pharaoh. . . . Yahweh/Moses 
 must write a second time what Elohim wrote first and Moses destroyed 
 [thereby erasing it and demonstrating the possibility of collaboration]. 
 Moses must write as a collaborator of Yahweh not as Elohim/Pharaoh” 
 (Jacobson, /dolatry of Rules, 1084). Jacobson refers to a third writing, 
 Exodus understood as authored by Moses, “which records the struggle 
 over the first two” (ibid., 1095). He also seems to have in mind another 
 kind of third writing, the people’s rewriting of the propositions in their 
 deeds (ibid.). He then draws a lesson for analysis of modern secular law: 
 “Naturalism requires only one [writing]. . . . Positivism requires two, a 
 procedure for marking rules as law and the actual markings of rules ac- 
 cording to the procedure” (ibid.). Common law requires three, as does 
 the jurisprudence of rights (ibid., 1096, 1125ff.). The law that counts is 
 collaborative. 
 
 Idols are silent. Moses grinds the idol to dust, then makes the people 
 consume it. The act is a parody of receiving the law into their hearts. 
 Jacobson, /dolatry of Rules, 1079. 
 
 Ibid. 
 
 Ibid. 
 
 Brandeis held: “The great achievement of the English-speaking people 
 is the attainment of liberty through law” (“The Opportunity in the Law,” 
 in Business —A Profession [Boston: Small, Maynard, 1914], 314). But the 
 great achievement of the Hebrew-speaking people was the achievement 
 of law through liberty. 
 
 Karl Barth put it this way: “There is no abstract cult-regulation, no ab- 
 stract legal norm, no abstract moral law. Everything that God wills is 
 an exact expression of the fact that those of whom He wills it are His 
 own—an exact counterpart of the ‘great and terrible things’ which God 
 had already done for [this people]. . . . The Ten Commandments and 
 the various ceremonial, legal and moral enactments, are not indepen- 
 dent and cannot be separated from this antecedent. They receive and 
 have from it their specific content. They are merely part of the law of the 
 life of the people led by God out of Egypt and into [the promised land]. 
 It is because it is this people, because it would not exist without these 
 ‘great and terrible things’ done by God, because it owes its existence to 
 these acts of God, that it is bound and obliged to keep the command 
 of its God. And in content each of the commands reflects and confirms 
 the fact that Israel is this people, the people created and maintained by 
 
 194 NOTES TO CHAPTER I 
 
_ 
 
 these acts of God. Thou shalt! means, /srae/ shall! and everything that 
 Israel shall is only an imperative transcription of what Israel is, repeat- 
 ing in some sense only what Israel has become by God, and what it must 
 always be with God” (The Doctrine of God, vol. 2 of Church Dogmatics, 
 pt. 2 [Edinburgh: T. and T. Clark, 1957], 572). See also Milner Ball, The 
 Promise of American Law (Athens: University of Georgia Press, 1981), 
 65—66, 16-63. (I would not presently express the subject matter as I did 
 in those pages.) 
 
 2. Intercession 
 
 See the references to a similar office in The Book of Job: 16:19 (witness?); 
 33:23 (mediator, interpreter?); 19:25 (vindicator, advocate, redeemer?). 
 See Marvin Pope, /oé, vol. 15 of The Anchor Bible (New York: Double- 
 day, 1975), 146. On Moses and Samuel as intercessors, see Jer. 15:1, Ps. 
 99:6, and below in part 2. 
 
 a. The first is not clearly intercessory, since God evidently hears the 
 people’s accusations directly without their being routed through Moses. 
 “As Pharaoh drew near, the Israelites looked back, and there were the 
 Egyptians advancing on them. In great fear the Israelites cried out to the 
 Lord. They said to Moses, “Was it because there were no graves in Egypt 
 that you have taken us away to die in the wilderness?’ . . . But Moses said 
 to the people, ‘Do not be afraid, stand firm, and see the deliverance that 
 the Lord will accomplish for you today...’ Then the Lord said to Moses, 
 ‘Why do you cry out to me? Tell the Israelites to go forward’ ” (Exod. 
 14:10—15, emphasis added). 
 
 b. The second is less intercession than a quick aside fired off by Moses 
 in a tight spot. After three dry days, the people discovered a spring, but 
 the water was too bitter to drink. “And the people complained against 
 Moses, saying, “What shall we drink?’ He cried out to the Lord; and the 
 Lord showed him a piece of wood; he threw it into the water, and the 
 water became sweet” (Exod. 15:24-25). 
 
 c. Hunger for meat and bread shortly followed thirst, and complaints 
 “against Moses and Aaron” erupted once more (Exod. 16:2). Moses 
 identifies the complaining as “not against us but against the Lord” 
 (Exod. 16:8). And, without intervention by Moses, God hears and prom- 
 ises food (quail and manna) in response. 
 
 d. The people grow thirsty again, and water is provided from a rock 
 (Exod. 17:2), an episode that I shall return to later. 
 
 Numbers 11:4—35 may be a narrative representation of God’s being fed 
 up with complaints about hunger and with Moses’ complaining about 
 the complaints. See the interesting interpretation in James S. Ackerman, 
 
 NOTES TO CHAPTER 2 195 
 
“Numbers,” in Alter and Kermode, Literary Guide to the Bible, 80-83. 
 In response to the people’s craving for meat, God sends an excessive 
 amount. In response to Moses’ request for help with his burden, God 
 sends an excess of spirit. It is on the order of: “You want quails? I'll give 
 you quails. You want spirit? I'll give you spirit.” 
 
 4 There are also later intercessions on the way to Canaan: on behalf of 
 Miriam after her rebellion (Num. 12); on behalf of the people in conjunc- 
 tion with Korah’s rebellion (Num. 16:22); for relief from snakes (Num. 
 21:4—9); and on behalf of the people at the border of Canaan that a suc- 
 cessor to himself be appointed lest the people be sheep without a shep- 
 herd (Num. 27:16-17). 
 
 5 For an interesting account of Moses’ argument see Yochanon Muffs, 
 Love and Joy (New York: Jewish Theological Seminary of America, 
 1992), 12-13. (God refers to the Israelites as “your” [Moses’] people; 
 Moses refers to them as “your” [God’s] people.) 
 
 6 One of the intercession’s arguments is based on the covenant: if you de- 
 stroy this people, you will default on your promises. Another relates to 
 reputation: what will the Egyptians say? This argument will be repeated 
 and elaborated in a later intercession for Israel when, after advance spies 
 return from the promised land with unflattering, fearful reports of what 
 awaits them, the people attempt a democratic rebellion: “Let us choose 
 a captain, and go back to Egypt” (Num. 14:4). Moses and Aaron en- 
 treat them to desist, they do not, and, in terms reminiscent of the Mt. 
 Sinai episode, God vows to do away with them (Num. 14:12). There- 
 upon Moses argues to God that “the Egyptians will hear of it . . . and 
 they will tell the inhabitants of this land . . . then the nations who have 
 heard about it will say, ‘It is because the Lord was not able to bring this 
 people into the land that he swore to give them that he has slaughtered 
 them in the wilderness’ ” (Num. 14:13-16). Rumor and public relations 
 have their uses and together with covenantal promises persuade God to 
 change his mind in the Numbers as well as the Exodus text. 
 
 7 Caleb and Joshua are the sole exceptions (Num. 32:1-12, Deut. 1:35- 
 38). 
 
 8 Muffs reads God’s statement somewhat differently: God agrees here only 
 to send His angel, not Himself (Love and Joy, 14-16). 
 
 9 “What is clear from the motivating appeals of Moses is that the prayer 
 is not for an arbitrary or inconsistent action on God’s part. It is a prayer 
 for God to act according to the divine will and purpose as it has been 
 manifest over and over again” (Miller, “Moses My Servant,” 245, 253). 
 
 10 “Then the Lord said to me: Though Moses and Samuel stood before me, 
 yet my heart would not turn toward this people” (Jer. 15:1). This text is 
 discussed later, in part 2. 
 
 196 NOTES TO CHAPTER 2 
 
11 
 
 12 
 
 _ 
 
 i) 
 
 Deut. 5:5. See Michael Walzer, Exodus and Revolution (New York: Basic 
 Books, 1985), 95. 
 
 My recognition of the fact that I was bound to take up lawyering for the 
 situation came in a specific moment. I had talked briefly to the faculty 
 of the Boston College School of Law about my early work on the Moses 
 story, and, in the conversation with them that followed, I and the dean, 
 Aviam Soifer, had a simultaneous “aha” experience: Is Moses at Sinai 
 counsel for a situation after the fashion of Louis Brandeis? 
 
 Some years ago, I explored American law’s dependence on story and 
 then the possibility that the story of America’s beginning can be related 
 to the biblical story of beginning as one type can be related to its fun- 
 damental antetype (Promise of American Law, 7—28).The present enter- 
 prise is not an exercise in typology. 
 
 3- Counsel for the Situation 
 
 John Frank, The Legal Ethics of Louis D. Brandeis, 17 Stan. L. Rev. 683, 
 697 (1965). 
 
 See, e.g., Thomas Shaffer, The Legal Ethics of Radical Individualism, 
 65 Tex. L. Rev. 963 (1987). See also David Luban, Lawyers and Jus- 
 tice (Princeton, N.J.: Princeton University Press, 1988); William Simon, 
 Visions of Practice in Legal Thought, 36 Stan. L. Rev. 469 (1984); David 
 Wilkins, Who Should Regulate Lawyers? 105 Harv. L. Rev. 799 (1992). 
 Other sources are discussed later. 
 
 Clyde Spillenger has a good description of lawyering for the situa- 
 tion: “It is to recognize and respect certain organic bonds, like family 
 and other relationships, as deserving of representation. It is to suggest 
 that the lawyer should be able to act as intermediary in situations that 
 involve multiple but not necessarily adverse interests. . . . Sometimes 
 the phrase refers to the role of lawyers as social reformers — making ‘the 
 situation’ synonymous with ‘the public’ or ‘the public good’ ” (Elusive 
 Advocate: Reconsidering Brandeis as People’s Lawyer, 105 Yale L. J. 1445, 
 1502 [1996]). 
 
 See John Dzienkowski, Lawyers as Intermediaries, 1992 U. Ill. L. Rev. 741, 
 748-53; Frank, Legal Ethics of Louis D. Brandeis, 698—703; Spillenger, 
 Elusive Advocate, 1504-5 and n. 208. For a very interesting reflection 
 on Brandeis in relation to Moses, see Robert Burt, Two Jewish Justices 
 (Berkeley: University of California, 1988), 124-26. 
 
 Brandeis said: “We hear much of the ‘corporation lawyer, and far too 
 little of the ‘People’s lawyer.’ The great opportunity of the American Bar 
 is and will be to stand again as it did in the past, ready to protect also the 
 
 NOTES TO CHAPTER 3 197 
 
interests of the people” (“Opportunity in the Law,” 321 [1905 address to 
 the Harvard Ethical Society]). On images of Brandeis as “attorney for 
 the people,” see Spillenger, Elusive Advocate, 1471 and n. 83, 1481 and 
 N. 121, 1502-3. 
 
 5 See generally, e.g., Luban, Lawyers and Justice; Spillenger, Elusive Advo- 
 cate. 
 
 6 See Alpheus Mason, Brandeis, A Free Man’s Life (New York: Viking, 
 1946), 491-508; Philippa Strum, Louis D. Brandeis: Justice for the People 
 (Cambridge: Murrand University Press, 1984), 291-308; A. L. Todd, Jus- 
 tice on Trial (New York: McGraw-Hill, 1964), 96-237. 
 
 7 Geoffrey Hazard, Ethics in the Practice of Law (New Haven, Conn.: Yale 
 University Press, 1978), 58—59. 
 
 8 See Frank, Legal Ethics of Louis D. Brandeis, 699-703; Dzienkowski, 
 Lawyers as Intermediaries, 750-53; Spillenger, Elusive Advocate, 1505-11. 
 
 9 Hearings before the Subcommittee of the Senate Committee on the Judi- 
 ciary on the Nomination of Louis D. Brandeis to Be an Associate Justice 
 of the Supreme Court of the United States, 64th Cong., 1st sess., 1916, 
 ser. 6926, 287. 
 
 10 Frank, Legal Ethics of Louis D. Brandeis, 702. 
 
 il Ibid. 
 
 Dzienkowski says: “One could interpret [it] in many different ways” 
 (Lawyers as Intermediaries, 752). Spillenger believes it “was not the ex- 
 pression of a lawyering metaphysic but a hurried and embarrassed re- 
 sponse to a question put to him by hostile counsel” (Elusive Advocate, 
 1507). 
 
 12 The charge against Brandeis “did not so much collapse as become sub- 
 merged in concessions from other reputable lawyers that they had often 
 done exactly as Brandeis” (Hazard, Ethics in the Practice of Law, 61). 
 Lawyers told Hazard that lawyering to the situation described settings 
 in which they had found themselves (ibid., 61-62). 
 
 13. Ibid., 65, see also 7, 61-62; Spillenger, Elusive Advocate, 1503-4. 
 
 14 American Bar Association, Canons of Professional Ethics 6 (1908). 
 
 15 American Bar Association, American Bar Association Model Code of 
 Professional Responsibility (1982), DR 5-105 (C). The “ethical consider- 
 ations” that accompanied the rule expressed concern for a lawyer’s in- 
 dependence of judgment and loyalty to her client but accepted the pro- 
 priety of representing multiple clients with differing interests outside 
 the context of litigation so long as there was full disclosure and client 
 consent (EC 5-14 to 5-16). 
 
 16 Ibid., EC 5-20. 
 
 17 See Hazard, Ethics in the Practice of Law, 62-64; Dzienkowski, Lawyers 
 as Intermediaries, 759-62. 
 
 18 Hazard, Ethics in the Practice of Law, 62. 
 
 198 NOTES TO CHAPTER 3 
 
19 
 
 20 
 
 21 
 
 22 
 
 23 
 
 American Bar Association, Model Rules of Professional Responsibility 
 (1992), Rule 2.2. Consultation and consent are required. There are other 
 conditions, including reasonable beliefs that the undertaking will be 
 successful and that there is little risk of prejudice to the clients’ indi- 
 vidual interests if it is not (ibid., Rule 2.2.a.1-3). Each client must be able 
 to make informed decisions, and the lawyer must believe that her repre- 
 sentation will be impartial as well as compatible with her responsibilities 
 to the individual clients. 
 
 Rule 1.7 is the general conflict of interest rule. For commentary on that 
 rule and its relation to Rule 2.2 see Russell Pearce, Family Values and 
 Legal Ethics: Competing Approaches to Conflicts in Representing Spouses, 
 62 Fordham L. Rev. 1253 (1992); Teresa Collett, The Ethics of Intergen- 
 erational Representation, 62 Fordham L. Rev., 1453 (1992). One learned 
 commentator believes that the rule constitutes an improvement but 
 that it “leaves many fundamental questions unresolved” (Dzienkowski, 
 Lawyers as Intermediaries, 745). 
 
 An ABA commission reevaluating the Model Rules proposes elimi- 
 nating Rule 2.2 and the language of “intermediation.” It would instead 
 cover what it refers to as a “joint representation” under Rule 1.7. See 
 note 22. 
 
 My representation of Shaffer is drawn from my correspondence with him 
 and from his well-taken, influential treatment of the subject in The Legal 
 Ethics of Radical Individualism. 
 
 American Law Institute, “Restatement of the Law Third: Restatement 
 of the Law Governing Lawyers, Proposed Final Draft No. 1,” March 29, 
 1996, sec. 211, cmt. a. That comment also states: “Although its termi- 
 nology might be thought to imply otherwise, Rule 2.2 addresses a par- 
 ticular setting for applying the general rules governing conflicts” (ibid.). 
 See Commission on Evaluation of the Rules of Professional Conduct, 
 “Draft for Public Comment,” March 23, 1999, Proposed Rule 1.7— 
 Public Discussion Draft, Comments 27-32; ibid., Model Rule 1.7 — Re- 
 porter’s Explanation of Changes, Comments 27-32; ibid., Model Rule 
 2.2—Reporter’s Explanation of Changes (http: //www.abanet.org / 
 cpr/ethics2k.html). See note 19. 
 
 The Restatement basically returns to the 1969 Model Code’s require- 
 ment of consent and adequate representation. Sections 209 and 210 
 cover, respectively, representation of multiple parties in civil and in 
 criminal litigation. Section 211 covers multiple representation in nonliti- 
 gation contexts. All three allow for representation of multiple parties 
 where the clients consent. Client consent is covered by section 202, 
 which requires that a client’s consent be based on “reasonably adequate 
 information about the material risks of such representation.” This sec- 
 tion also provides that, consent notwithstanding, it must nevertheless 
 
 NOTES TO CHAPTER 3 199 
 
24 
 25 
 
 26 
 
 27 
 
 28 
 
 29 
 
 30 
 
 31 
 
 be “reasonably likely that the lawyer will be able to provide adequate 
 representation.” 
 
 Hazard, Ethics in the Practice of Law, 64. 
 
 Dzienkowski warns that Brandeis’s concept is “no longer viable in the 
 modern legal profession” (Lawyers as Intermediaries, 748). 
 
 Hazard notes that bar association advisory opinions are abstract and 
 dogmatic and, as “clean-cut answers to hypothetical problems,” not 
 really illuminating “for the messy ethical questions of real life” (Ethics 
 in the Practice of Law, 60). 
 
 He simply “saw himself,” Robert Burt suggests, “standing alone at the 
 margin of his society,” where he resisted affiliation with groups, causes, 
 and clients, and preserved his autonomy (Two Jewish Justices, 9). 
 Spillenger, Elusive Advocate, 1509. This is to specify and extend Robert 
 Burt’s observation that “Brandeis always turned away; he always found 
 a place to stand alone” (Two Jewish Justices, 9). 
 
 Dzienkowski notes that, in these instances, “the clients beara risk that is 
 not present in other types of representations. The risk relates primarily 
 to the fact that the lawyer does not owe his or her loyalty exclusively 
 to one client’s interests. Further, most intermediations arise outside the 
 litigation context, and thus are not supervised by an impartial trier of 
 fact or law” (Lawyers as Intermediaries, 775 n. 184). 
 
 Derrick Bell noted about civil rights lawyers in the 1970s: “Idealism, 
 though rarer than greed, can be especially hard to control” and can be 
 especially dangerous (Serving Two Masters: Integration Ideals and Client 
 Interests in School Desegregation Litigation, 85 Yale L. J. 470, 505 [1976]). 
 
 Owen Fiss noted about one lawyer for the situation in the abolition- 
 ist cause: “In invoking humanity’s interest in freedom, Dana [stood] in 
 danger of substituting his own conception of the good —or that of the 
 privileged group to which he belongs — for that of the collective he [pur- 
 ported] to represent” (Can a Lawyer Ever Do Right? 17 Cardozo L. Rev. 
 1859, 1862 [1996]). 
 
 Rule 2.2, comment. The rule itself provides that, before a lawyer acts as 
 an intermediary, she must believe that there is little risk of prejudice to 
 client interests if she fails to achieve success. 
 
 Such detachment is not on its face an unsound idea. There are circum- 
 stances when an attorney should be independent. But Spillenger makes 
 a well-taken point: “The Lennoxes of this world probably fall in the vast 
 middle of a universe of clients bounded by ‘powerful, amoral corpora- 
 tions’ (from which a lawyer should exercise independence), on one side, 
 and ‘disempowered individuals’ (with whom a lawyer should engage in 
 empathetic dialogue), on the other. A lawyerly ethic that counsels inde- 
 pendence from a client’s unlawful or immoral goals does little to explain 
 Brandeis’s instincts in the Lennox case — his lack of interest in solutions 
 
 200 NOTES TO CHAPTER 3 
 
32 
 
 —_ 
 
 5 
 
 other than his own” (Elusive Advocate, 1510-11). For more on the inde- 
 pendence of the lawyer, see part 3. 
 Hazard, Ethics in the Practice of Law, 67. 
 
 4. The Word in Moses’ Situation 
 
 Hanna Pitkin establishes and elaborates two basic types of representa- 
 tion: that of mandate and that of independence (Concept of Representa- 
 tion). In speaking for God and the people, Moses performs in both in- 
 stances a role that is sometimes following a mandate and sometimes an 
 exercise of creative independence. 
 
 Jacobson’s underlying point is that Freud got it backward. Freud pro- 
 posed in Moses and Monotheism (1939) that Moses was a distinguished 
 Egyptian who joined a group of culturally inferior immigrants. “The 
 text is not hiding the secret that Moses was an Egyptian prince. Moses is 
 telling us that he risked setting up as Pharaoh” (/dolatry of Rules, 1097- 
 98). 
 
 Christian tradition singles out for celebration and memory Moses’ resis- 
 tance to forms of the pharaonic temptation: “By faith, Moses, when he 
 was grown up, refused to be called a son of Pharaoh’s daughter, choos- 
 ing rather to share ill-treatment with the people of God than to enjoy 
 the fleeting pleasures of sin” (Heb. 11:24-25). 
 
 Moses’ resistance to the pharaonic temptation renders especially 
 ironic the claims of the rebels that he had engineered the exodus for 
 his own purposes (Num. 16:12-14). Compare Numbers 10:29—32, the 
 stories in Numbers 13, and the comments on them by Ackerman (“Num- 
 bers,” 80, 83). See also Numbers 11: 11ff. 
 
 God’s response begins: “Whoever has sinned against me I will blot out 
 of my book” (Exod. 32:33). 
 
 Yochanon Muffs proposes that the prophet is not only the messenger 
 from the heavenly court but also an independent advocate to the court 
 whose prayer and intercession seek rescission of the “evil” decree: “He 
 is first the messenger of the divine court to the defendant, but his mis- 
 sion boomerangs back to the sender. Now, he is no longer the messen- 
 ger of the court; he becomes the agent of the defendant, attempting to 
 mitigate the severity of the decree” (Love and Joy, 9). God is then imag- 
 ined as subject to conflicting emotions of justice and mercy: “If there 
 is no balance in the divine emotion, if justice gets the upper hand over 
 mercy, then the world is placed in great danger. Therefore, God allows 
 the prophet to represent in his prayer His own attribute of mercy, the 
 very element that enables a calming of God’s feelings” (ibid., 33). 
 
 The ear of God is a metaphor primarily of petition in the Psalms: “Give 
 ear to my prayer.” 
 
 NOTES TO CHAPTER 4 201 
 
In a 1985 letter, my teacher James Luther Adams wrote: “My mem- 
 ory took me back to the writings of Thorkild Jacobsen, my colleague for 
 twenty years in Chicago and then for two decades at Harvard, an emi- 
 nent authority on the religion of Mesopotamia.” Jacobsen had written 
 an essay in which he “argues that the Council of the Gods was a projec- 
 tion of the primitive democracy of the Mesopotamian village. No god 
 or goddess was to undertake action without first consulting the Coun- 
 cil. The god or the goddess must first listen to the discussion in council. 
 After reading the article I talked with him, and said that I wanted to ven- 
 ture to state a major theme in the article. “Would you mind my risking 
 an oversimplification?’ ‘Certainly not.’ ‘A major inference to be drawn 
 from the account of this ‘primitive democracy’ is this: the sign of the 
 god or goddess is the capacity to raise the hand to the ear and hear what 
 another was saying.’ “That will do very nicely.’ ” 
 
 7 Gen. 12:1-3, 1§:1—21, 17:1-27. 
 
 8 The poetic link between God passing before Moses and Israel in the 
 company of God passing before other peoples is suggested by the juxta- 
 position of 34:6—7 and 34:8-14. 
 
 9 To be sure, the text has yet to give us the making of the tabernacle and 
 vestments. But what reader does not gladly pause for the prejourney 
 nourishment of the text’s wonderful description of the extraordinary 
 tent and its covering, the ark and mercy seat, the altar, the lamps, and 
 hangings, the finely worked garments, and the robe finished all around 
 the hem with alternating bells of gold and pomegranates of blue, purple, 
 and crimson yarn. The details delight the imagination, and the reading 
 time passes quickly. 
 
 10 What is to be made of the fact that Moses, in smashing the stones, 
 erases God’s words written by God? Is this an act extending God’s 
 wrath: Moses destroys that which would have mobilized and animated 
 the people? Is this an act of mercy: If the words God has written enter 
 the camp at the moment Israel is in the midst of its festival of idola- 
 try, the word will break out and consume them? Is this a pedagogical 
 act, as Arthur Jacobson proposes: Moses’ smashing the stones to teach 
 the people that this engraved stone is not an idol? 
 
 ll In the Christian tradition, believers return God’s express words to him 
 in the Lord’s Prayer. 
 
 12 Jonathan Edwards: “The emanation or communication of the divine 
 fullness, consisting in the knowledge of God, love to him and joy in 
 him, has relation indeed both to God and the creature: but it has rela- 
 tion to God as its fountain, as the thing communicated is something of 
 his internal fullness. The water in the stream is something of the foun- 
 tain; and the beams of the sun are something of the sun. And again, they 
 have relation to God as their object: for the knowledge communicated is 
 
 202 NOTES TO CHAPTER 4 
 
wo wonawn + 
 
 the knowledge of God; and the love communicated is the love of God; 
 and the happiness communicated is joy in God. In the creature’s know- 
 ing, esteeming, loving, rejoicing in, and praising God, the glory of God 
 is both exhibited and acknowledged; his fullness is received and returned. 
 Here is both an emanation and remanation. The refulgence shines upon 
 and into the creature, and is reflected back to the luminary. The beams 
 of glory come from God, are something of God, and are refunded back 
 again to their original. So that the whole is of God, and in God, and to 
 God; and he is the beginning, and the middle, and the end” (“Disser- 
 tation concerning the End for Which God Created the World,” in The 
 Works of Jonathan Edwards [Edward Baines, 1806], 1:462, 529). 
 
 5- The Risks 
 
 Robert Jenson, Systematic Theology (New York: Oxford University 
 Press, 1997), 1:94. 
 
 Jenson, Systematic Theology, 217. 
 
 Ibid., 222. “God is not God in spite of changing his mind, in spite of an- 
 swering prayer or failing to do so; he is God because he does and can do 
 such things wholeheartedly” (ibid.). 
 
 Brueggemann, Theology of the Old Testament, 144. 
 
 Ibid., 83. 
 
 Ibid. 
 
 Jenson, Systematic Theology, 76 (quoting Mekhilta Y to Exodus 12: 41). 
 Ibid. 
 
 Israel needs “to speak of God as a ‘settled’ participant in her story with 
 him, who is yet other than the perpetrator of the identification” (ibid.). 
 “God is identified with Israel in that he is identified as a participant in 
 Israel’s story with him” (ibid., 77). 
 
 Numbers 12. 
 
 See, e.g., Sternberg, Poetics of Biblical Narrative, 107; Ackerman, “Num- 
 bers,” 84, 85; N. H. Snaith, “Numbers,” in Peake’s Commentary, 264. 
 Repeated at Numbers 27:14 (“you rebelled against my word, you did not 
 show my holiness”). 
 
 Deuteronomy ends on what Patrick Miller describes as “a subversive 
 note.” Deuteronomy, 244. 
 
 Damrosch, “Leviticus,” 74. 
 
 Jenson, Systematic Theology, 231. 
 
 Ibid., 222; see also ibid., 80. 
 
 Damrosch, “Leviticus,” 74. 
 
 Miller, “Deuteronomy,” 50-51. 
 
 Brueggemann, Theology of the Old Testament, 83. 
 
 NOTES TO CHAPTER 5 203 
 
20 
 21 
 
 22 
 
 23 
 24 
 25 
 26 
 
 — 
 
 Ibid., 567. 
 
 In The Practice of Justice (Cambridge, Mass.: Harvard University Press, 
 1998) William Simon argues that lawyers should practice justice and that 
 they should do so contextually. His emphasis on these subjects is a wel- 
 come addition to the literature on lawyering. It is also a welcome chal- 
 lenge to the established view according to which legal ethics and pro- 
 fessional responsibility are reduced to little, categorical rules that leave 
 scant room for the exercise of discretion. Simon’s approach is limited, 
 however, by his limited notions of justice and context. He presents jus- 
 tice as no more than the values of the legal system and the context as no 
 more than the individual attorney’s assessment of the relevant circum- 
 stances of the particular case and their relation to legal merit. 
 
 I draw upon Paul Lehmann: “Obviously the kind of ethical literalism 
 which aims at a one-to-one correlation between a specific word of Jesus 
 and a specific action misses the point of Jesus teaching. Decision making 
 as the Christian understands it goes on in quite another way. For the 
 Christian the environment of decision, not the rules of decision, gives 
 to behavior its ethical significance. If . .. God is at work in this world, 
 doing what it takes to make and to keep human life human, no specific 
 action can be said to express or fulfill an ethical principle in a literal 
 way. Telling the truth is, [for example], not identical with optimal ver- 
 bal veracity. It is a matter of saying the ‘right’ word. The ‘right’ word, 
 however, is a sgn that human relations are going on in an environment 
 of trust... . a human action has occurred which indicates or points to 
 fundamental human relations which are both fundamental and human 
 because of what God is doing in the world” (Ethics in a Christian Context 
 [New York: Harper and Row, 1963], 346-47). 
 
 Ibid., 347. 
 
 Brueggemann, Theology of the Old Testament, 723. 
 
 Ibid. 
 
 Ibid., 713 (emphasis omitted). 
 
 6. The Promise of Succession 
 
 Earlier, at the base of Mt. Sinai, Aaron had committed the gravest of 
 offenses. It was he who made the calf and led the people’s worship of 
 it. The other idolaters were punished for their sin: They perished in the 
 desert before they could reach the promised land. Aaron was not in- 
 cluded in this punishment. (He would also conspire with Miriam to rebel 
 against Moses, an act for which Miriam but not he was punished [Num. 
 12:1—16].) 
 
 There are two explanations for God’s excepting Aaron. According to 
 
 204 NOTES TO CHAPTER 6 
 
Deuteronomy, Moses successfully interceded on Aaron’s behalf (9:20). 
 According to Exodus, after Moses interrupted the calf worship, the en- 
 tire House of Levi redeemed itself by leading the bloody purge: “Moses 
 said, “Today you have ordained yourselves for the service of the Lord, 
 each one of you at the cost of a son or a brother, and so have brought 
 
 ee) 
 
 a blessing on yourselves this day’ ” (Exod. 32:29). On this explanation, 
 Aaron brought an atoning blessing on himself. Either way Aaron is not 
 sentenced. Not for that transgression. 
 
 (It is possible that he was punished for that transgression. David 
 Damrosch suggests a causal link between Aaron’s idolatry and the death 
 of his eldest sons, who were consumed by fire when they made the im- 
 provised offering [Lev. 10:1-3] [“Leviticus,” 66, 69-71]. See also Jacob 
 Milgrom, Leviticus z—26, vol. 3 in The Anchor Bible [New York: Double- 
 day, 1991], 628-35.) 
 
 However, Aaron is ultimately punished in the same way as the others 
 but for a different reason. It is the same reason that Moses must die out- 
 side the promised land: the incident at Meribah. Meribah is made the 
 sentencing equivalent of the idolatry at Mt. Sinai. However, at Mt. Sinai 
 Aaron was a leader in the offense. 
 
 Deuteronomy offers the same explanation for Aaron’s early death 
 (32150). 
 
 For a comparison of this statement with the later statement that “never 
 since has there arisen a prophet in Israel like Moses” (Deut. 34:10), see 
 Robert Polzin, Moses and the Deuteronomist (Bloomington: Indiana Uni- 
 versity Press, 1980), 35-36. 
 
 In the beginning of Deuteronomy Moses reviews the failures and com- 
 plaints of the people in the wilderness and God’s anger in response to 
 them and says about the incident at Meribah: “Even with me the Lord 
 was angry on your account” (Deut. 1:37) —on your account, not mine. 
 Moses blames the people. However, toward the end of Deuteronomy, in 
 the passage cited, God says, “You broke faith with me among the Israel- 
 ites at the waters of Meribah-kadesh . . . , by failing to maintain my holi- 
 ness among the Israelites” (Deut. 32:48—52). Here God says Moses is to 
 blame. 
 
 Moses’ statement is to be matched against God’s. Moses says he is to 
 be punished because God was angry with the people for cutting a trail 
 of rebellious grumbling through the desert. God says Moses himself re- 
 belled, and He makes no mention of anger at the people. The two are not 
 necessarily mutually exclusive, but there is a subtle difference in the fix- 
 ing of blame. And there is no doubt about which account the text would 
 have us believe is the more credible. 
 
 If only in the smallest way the reader is led to questions about Moses. 
 Are his statements about Meribah (understandably) self-serving? Are 
 
 NOTES TO CHAPTER 6 205 
 
they a reflection or repetition of the self-serving offense committed at 
 Meribah? Is this a way of allowing readers to witness a version of the 
 offense for themselves? Is Moses at last like Adam in pointing to others 
 instead of accepting responsibility (“The woman whom you gave to be 
 with me, she gave me the fruit from the tree” [Gen. 3:12])? Does he at- 
 tempt to play God as Geoffrey Hazard says lawyers for the situation do? 
 Has he this much in common with us? Is he, after all, one of us? 
 
 5 Robert Polzin, “Deuteronomy,” in Alter and Kermode, Literary Guide to 
 the Bible, 94. 
 
 6 Robert Polzin, “Reporting Speech in the Book of Deuteronomy: Toward 
 a Compositional Analysis of the Deuteronomic History,” in Traditions 
 in Transformation: Turning Points in Biblical Faith, ed. Baruch Halpern 
 and Jon Levenson (Winona Lake, Ind.: Eisenbrauns, 1981), 200. 
 
 7 Polzin, “Reporting Speech in the Book of Deuteronomy,” 202; repub- 
 lished in Polzin, Moses and the Deuteronomist, 27; repeated in Polzin, 
 “Deuteronomy,” 93. 
 
 On the matter of “author” and “narrator,” Meir Sternberg notes that, 
 since Wayne Booth’s Rhetoric of Fiction, theorists have spoken of an 
 “actual writer,” an “implied author,” and a “narrator” (Sternberg, Poetics 
 of Biblical Narrative, 74—78).The first is the person, who, during his life, 
 did many things, including writing. The second is the author projected 
 by a given text as its creator. The narrator is the voice or character created 
 by the writer to do the telling. Sternberg observes that this tripartition 
 doesn’t exactly suit the biblical texts in which, he argues, the implied 
 author and the narrator practically merge. When he uses the word “nar- 
 rator,” therefore, he intends it to embrace both and means “the master 
 of the tale in general” (ibid., 75). He notes that there remains a marked 
 distinction between the actual writer who “lived in history” and the nar- 
 rator “who comes to life in interpretation” (ibid.). The matter is not free 
 of complication, but I tend to follow Sternberg’s usage. 
 
 8 There are both “an overt, obvious voice that exalts Moses as it plays 
 down its own role, and a still, soft voice that nevertheless succeeds in 
 drawing attention to itself at the expense of Moses’ uniqueness” (Polzin, 
 “Deuteronomy,” 94). 
 
 9 “As Moses speaks for God, so the narrator speaks for Moses” and for God 
 and blurs “the distinction between the teaching authority of his hero and 
 that of the narrator” (ibid., 96). 
 
 10 The assurance runs to the people and not to the individual. Any par- 
 ticular successor to Moses— priest, political leader, prophet, writer — 
 will enjoy no more privilege or immunity than did he. None is to con- 
 fuse himself with God. All are subject to the terrible consequences of 
 transgression. 
 
 206 NOTES TO CHAPTER 6 
 
— 
 
 Writer-successors suffer a subtle temptation. Meir Sternberg says that 
 biblical writers exhibit certain kinds of omniscience and omnipotence. 
 Their abilities to penetrate a character’s mind and to narrate widely sepa- 
 rated events simultaneously constitute their omniscience (Sternberg, 
 Poetics of Biblical Narrative, 59). Their ability to create a world on the 
 page is their omnipotence (ibid., 99). Both powers are to serve God, 
 who is the Omniscient and Omnipotent. Sternberg says that, at Meribah, 
 Moses struck the rock and drew water “at the price of diminishing God” 
 and thereby robbed “the Omnipotent of his hallmark and the demon- 
 stration of its grandeur” (ibid., 107). It is a central offense, and Aaron is 
 guilty of it as well. The danger for the succeeding biblical writers is that 
 they, too, will display their omniscience and omnipotence so as to di- 
 minish rather than serve the Omniscient and Omnipotent God. Writers’ 
 temptation is to replicate the core offense of Moses and Aaron and con- 
 flate being mouth for God with being God. 
 
 The Deuteronomist expressly disavows any exalted comparison with 
 Moses in the conclusion to Deuteronomy: “Never since has there arisen 
 a prophet in Israel like Moses, whom the Lord knew face to face. He 
 was unequaled for all the signs and wonders that the Lord sent him to 
 perform .. . and for all the mighty deeds and all the terrifying displays 
 of power that Moses performed in the sight of all Israel” (Deut. 34:10— 
 12). The Deuteronomist enacts a succession to Moses and yet depends 
 upon the story he tells rather than upon explicit claims for the writing 
 to establish the authority of his words. 
 
 7. The Promise of Justice 
 
 See also Deuteronomy 24:17-18, 27:19. 
 
 Damrosch, “Leviticus,” 74. “The transformation of exile makes alien- 
 ation the basis for a renewed ethical closeness to one’s neighbors and 
 even to strangers” (ibid.). 
 
 Remarkably, the bringing together continues as an obligation suffi- 
 ciently radical to include even Egyptians in the assembly of the Lord: 
 “You shall not abhor any of the Egyptians, because you were an alien 
 residing in their land. The children of the third generation that are born 
 to them may be admitted to the assembly of the Lord” (Deut. 23:7-8). 
 But a memory for outrage is also to continue. Ammonites and Moabites 
 are to be excluded “because they did not meet you with food and water 
 on your journey out of Egypt. . . . You shall never promote their wel- 
 fare or their prosperity as long as you live” (Deut. 23:4, 6). Why include 
 Egyptians and exclude Ammonites and Moabites? 
 
 NOTES TO CHAPTER 7 207 
 
8. Psalm 114 
 
 1 These comments are made about Trible by Walter Brueggemann (The- 
 ology of the Old Testament, 56). I make direct use of Trible’s work in 
 part 2. 
 
 2 Ibid., 56. 
 
 3 The story of crossing the Jordan on dry ground is told in Joshua: 3:14- 
 17. 
 
 4 Robert Alter, The Art of Biblical Poetry (New York: Basic Books, 1985), 
 210. 
 
 5 Ibid. 
 
 6 Water made to flow froma rock in the desert is an explicit image of God’s 
 redemptive nurturing of His people in Isaiah: “God has redeemed His 
 servant Jacob, and they did not thirst in the wastelands where He led 
 them. Water from a rock he made flow for them. He split the rock and 
 water gushed.” (This is the translation of Robert Alter, who discusses 
 these verses helpfully in The Art of Biblical Poetry, 20.) 
 
 7 See Alter, Art of Biblical Poetry; Alter, “The Characteristics of Ancient 
 Hebrew Poetry,” in Alter and Kermode, Literary Guide to the Bible, 
 600; George W. Anderson, “Characteristics of Hebrew Poetry,” in New 
 Oxford Annotated Bible, 392. 
 
 8 So faras I know, a people of strange language occurs nowhere else in the 
 Bible as a description of the Egyptians. However, Robert Alter pointed 
 out to me in correspondence that it is quite common in the Bible to 
 refer to foreign peoples as speakers of gibberish. It was the same for the 
 Greeks, who regarded foreigners as uttering incomprehensible nonsense 
 that sounded to them like “barbarabarbarabarbara” and so referred to 
 them as barbarians. Mitchell Dahood argues that the root consonants 
 in the Hebrew /7 should be translated as “barbaric” rather than as “of 
 strange language” (Psalms III, vol. 17A of The Anchor Bible [New York: 
 Doubleday, 1970], 134). | accept the usual translation rather than his and 
 find that it performs useful work in the poem, as I shall propose below. 
 
 9 J. P. Fokkelman provides an example of the advantages of legislation in 
 verse that employs chiasm: “Whoever sheds the blood of a human, by a 
 human shall that person’s blood be shed; for in his own image God made 
 humankind” (Gen. 9:6). Fokkleman writes: “Verse 6a is a legal directive 
 which prescribes an accurate balance between capital crime and punish- 
 ment; 6b contains its sacral motivation . . . : shofekh dam ha’adam / 
 ba’adam damo yishafekh (6a) for in the image of God / made he man. 
 (6b) The first line is usually wrongly translated “Who sheds the blood of 
 a human being, by a human being his blood shall be shed.’ The structure 
 of the first line in Hebrew, however, reveals a symmetry, the concen- 
 tric pattern abcc'b'a'. The purpose of this arrangement is of course to 
 
 208 NOTES TO CHAPTER 8 
 
show that the ‘human being’ in the first half-verse is the same person 
 as the ‘human being’ (that is, the victim) in the other. The correct ren- 
 dering offers a precise image of balanced legal retribution: “Who sheds 
 the blood of a human being, his blood (as compensation) for that human 
 being be shed’ ” (“Genesis,” in Alter and Kermode, Literary Guide to the 
 Bible, 45). 
 
 Dahood employs the past tense (Psalms LIT, 133, 136). 
 
 In the stories of the exodus, while the water draws back there is no trem- 
 bling of mountains. The shaking of the mountains takes place later when 
 God descends upon Mt. Sinai. In Psalm 77, however, the shaking of 
 the earth belongs to the poetic description of the mighty event of the 
 exodus. In Psalm 114, the reference to mountains and hills may be to the 
 Sinai events, in which case the entire sweep of stories is set out before 
 the mind’s eye: exodus, Sinai, conquest. Or the reference may be to the 
 exodus or exodus and entry. Or it may be no reference of the sort but in- 
 stead a reflection of a poetic formula. See, e.g., Alter’s interesting reflec- 
 tions on the use of “mountains-hills” in prophetic poetry (4rt of Biblical 
 Poetry, 154-57, esp. 157). See also his observations on the use elsewhere 
 of mountains-hills in the image of God’s world-embracing justice (ibid., 
 IAD) 
 
 Robert Alter employs Deuteronomy 32:13 as an illustration of some 
 of the dynamics of biblical poetry’s parallelism. His comments about 
 rock /flinty stone in that text apply here as well. He translates the lines in 
 Deuteronomy as “He suckled him with honey froma rock / and oil from 
 the flinty stone.” Psalm 114’s “pool of water” and “spring of water” may 
 be substituted for “honey” and “oil” in reading Alter’s comment: “Flinty 
 stone’ follows the rule of a specific instance of the category coming after 
 the general term and by so doing effects an intensification or focusing of 
 meaning. The first verset might even be read ‘naturalistically, as a hy- 
 perbolic poetic allusion to the discovery of honey combs in rocky crags 
 [pools of water in the hollows of desert stone], but no such construal is 
 allowable in the second verset, both because here it is oil that is provided 
 and because the focusing effect of ‘flinty stone’ leaves no alternative to 
 a recognition of the miraculous character of the event” (ibid., 24). 
 Ibid., 118. 
 
 Ibid., 54 (Commenting on The Song of the Sea, Exod. 15 :1-18). 
 
 Ibid., 53. 
 
 The psalm was given to me in a minor type of the larger type. My wife 
 and I attended an Episcopal church service in Athens, Georgia. I was 
 put to a small crisis by the first song, sung with gusto: “Onward Chris- 
 tian Soldiers.” To sing this bathetic, triumphalist song strikes me as blas- 
 phemy in Athens, where, in my lifetime, crosses were paraded around 
 and set ablaze as an act of terror and where there was some overlap be- 
 
 NOTES TO CHAPTER 8 209 
 
tween the leaders of the city’s establishment and the Ku Klux Klan. Torn 
 between marching out and standing silently, I looked down and my eye 
 caught one of the texts for the day in the leaflet containing the liturgy. 
 It was Psalm 114. At the time I had been working on this chapter with 
 no thought for the Psalms but with Robert Alter’s Art of Biblical Poetry 
 freshly in mind. At that instant I began to work out the reading that I 
 have just offered. I stayed in the church. The remaining liturgy, texts, 
 and a redeeming sermon made me thankful that I had not departed. I 
 was doubly relieved by the absorbing calm that the psalm and the inter- 
 pretation of it afforded in the midst of the militaristic beat of the con- 
 gregation’s singing. 
 
 Some weeks later, as a guest teacher in one the church’s classes, I 
 offered my reading of Psalm 114 together with an explanation of the 
 occasion that had directed me to it. I hoped that the congregation had 
 surrendered its singing of that psalm. In due course my hope was dashed. 
 
 17 The image of the word as seminal rain is employed also as the opening 
 for the song of Moses in Deuteronomy 32: “Give ear, O heavens, and I 
 will speak; let the earth hear the words of my mouth. May my teaching 
 drop like the rain, my speech condense like the dew; like gentle rain on 
 grass, like showers on new growth. For I will proclaim the name of the 
 Lord; ascribe greatness to our God!” (Deut. 32:1-3). 
 
 18 Alter, Art of Biblical Poetry, 210-12. 
 
 9. The Midwives 
 
 1 In these verses, the text uses “Pharaoh” and “king of Egypt” inter- 
 changeably. 
 
 2 Midwives’ political role in the story may correspond with the politi- 
 cal role they played in the society. Victor Matthews and Don Benjamin 
 describe midwives of the time as performing legal as well as medical- 
 clinical work: negotiating precoital covenants, supervising times for 
 conception, certifying pregnancy, negotiating household adoption and 
 naming of the baby, etc. (Matthews and Benjamin, Social World of An- 
 cient Israel, 1250-587 BCE [ Peabody, Mass.: Hendrickson, 1993], 67—81.) 
 See also Matthews and Benjamin, Old Testament Parallels (New York: 
 Paulist Press, 1991), 17, 20, 86-88, 93, 154-55. 
 
 3. The appearance of the midwives and the ensuing byplay could be taken 
 as a virtuosic flourish unnecessary to the development of the narrative 
 action. The story could move sensibly from the exploding population of 
 slaves directly to the general order to throw babies into the Nile without 
 the intervention of the midwife scene. 
 
 4 Socrates’ mother was a midwife, and it may have been that midwives 
 
 210 NOTES TO CHAPTER 9 
 
generally in Greece were past the age of childbearing. That the Hebrew 
 midwives were given families may indicate that the same was not true in 
 Israel and Egypt. However, if in those cultures midwives belonged to a 
 separate, special community, Shiphrah’s and Puah’s families of their own 
 would represent an extraordinary gift. See Victor Matthews and Don 
 Benjamin, “The Midwife,” in Matthews and Benjamin, Social World of 
 Ancient Israel. 
 
 Textually, it is not clear whether they were Hebrew midwives or were 
 midwives to the Hebrews. Extratextually, Josephus maintained that they 
 were Egyptian. Also, “the fear of God” is employed elsewhere in the 
 Bible as an explanatory description of gentiles’ sympathy for the He- 
 brew cause. See Drorah O’Donnell Setel, “Exodus,” in The Women’s 
 Bible Commentary, ed. Carol Newsom and Sharon Ringe (Louisville, 
 Ky.: Westminster /John Knox Press, 1992), 30; Stalker, “Exodus,” 208, 
 210. 
 
 See, e.g., The New Oxford Annotated Bible, 71 (note to Exod. 2:10); 
 Nahum Sarna, Exploring Exodus (New York: Schocken Books, 1986), 
 32-33. 
 
 Setel, “Exodus,” 29. 
 
 This is Phyllis Trible’s translation, from God and the Rhetoric of Sexuality 
 (Philadelphia: Fortress Press, 1978), 60. For other uses of the midwife 
 image see Job 10:18—19, Jeremiah 1:5. 
 
 This translation follows that of Trible, God and the Rhetoric of Sexuality, 
 16. My comments here draw upon pages 14-21. 
 
 Ibid., 17. 
 
 thid:.o8: 
 
 Ibid., 69. 
 
 “Correlative with the patriarchal co-optation and domestication of 
 God’s name have been the domestication and distortion of the covenan- 
 tal story and its Scripture. The fatherhood of God became the princi- 
 pal warrant for the dehumanizing subordination, chiefly of women, but 
 also of servants and calves, of the underprivileged and the untalented” 
 (Lehmann, Decalogue and a Human Future, 130-31). “There is a radi- 
 cal and uncompromising contradiction and opposition between God the 
 father—so understood and responded to—and the God of Adam and 
 Eve, of Abraham and Sarah, of Isaac and Rebekah, of Jacob and Rachel, 
 of Moses and Miriam” (ibid., 129). 
 
 Trible, God and the Rhetoric of Sexuality, 21. 
 
 Lehmann, Decalogue and a Human Future, 116. 
 
 Phyllis Trible, Texts of Terror (Philadelphia: Fortress Press, 1984), 16. 
 Dennis Curtis and Judith Resnik, mages of Justice, 96 Yale L. J. 1727, 
 
 1731 (1987). 
 
 NOTES TO CHAPTER 2II 
 
10. Socratic Midwifery That Isn’t 
 
 _ 
 
 Moses and Socrates come from entirely different worlds, one from the 
 discourse and experience of the davar, the powerful word of God, and 
 the other from the discourse and experience of the /ogos, the word of 
 rationality. However, so far as I have been able to determine, Greek 
 midwifery did not differ substantially from the practice in Egypt. And, 
 although I would not compose the differences between the two, the gen- 
 erosity of the biblical precedent encourages a positive reevaluation of 
 
 Socrates as midwife. 
 
 On ancient midwifery, see, e.g., Léonie Archer, “Notions of Commu- 
 nity and the Exclusion of the Female in Jewish History and Historiogra- 
 phy,” in Women in Ancient Societies, ed. Léonie Archer, Susan Fischler, 
 and Maria Wyke (New York: Routledge, 1994), 65-66; Nancy Demand, 
 Birth, Death, and Motherhood in Classical Greece (Baltimore, Md.: Johns 
 Hopkins University Press, 1994), 63-68, 130-33. Jean Towler and Joan 
 Bramall comment that “the basic principles of Greek medicine and also 
 of midwifery were derived from the Egyptian body of knowledge. How- 
 ever, even in this age in which the art of midwifery appeared highly 
 developed, and midwives and doctors were clinically skilled practition- 
 ers, the Greeks made very little contribution to obstetrics” (Towler and 
 Bramall, Midwives in History and Society [Dover, N.H.: Croom Helm, 
 1986], 12). 
 
 2 Theaetetus, in The Dialogues of Plato, trans. B. Jowett (New York: Ran- 
 dom House, 1937), 2:150 [149], 151 [150]. 
 
 3 Theaetetus, 151 [150]. The metaphor continues in the Symposium and 
 the Phaedrus. See Demand, Birth, Death, and Motherhood in Classical 
 Greece, 136—38, 225 n. 70. 
 
 4 See Gregory Vlastos, Socrates, Ironist and Moral Philosopher (Ithaca, 
 
 N.Y.: Cornell University Press, 1991), 266. Of course, it could still be 
 
 said that Plato, if not Socrates, is a midwife. Or so says Raphael Demos: 
 
 “Plato is averse to providing the reader with answers to questions; since 
 
 such generosity on his part would remove from the reader that very 
 
 sense of wonder which is the stimulus to speculation. In one of the dia- 
 logues, Socrates explains his function as a teacher by comparing himself 
 to a midwife. The midwife, usually old and sterile, bears no children of 
 her own; she helps others to bring forth children. So Plato, in his dia- 
 logues, is not giving formed and finished ideas to the reader; he is as- 
 sisting the reader to bear his own intellectual children” (introduction to 
 
 The Dialogues of Plato, 1:viii). 
 
 In helpful criticism of an early version of this book, a friend said that 
 in the Theaetetus and elsewhere, Socrates “expects his interlocutors to 
 
 212 NOTES TO CHAPTER IO 
 
on nw 
 
 recognize and endorse the opinions he creates or expresses as their own — 
 if only they could express themselves as well as Socrates expresses him- 
 self.” It seems to me that in these circumstances Socrates persuades the 
 interlocutors and leads them to views that they could not otherwise pro- 
 duce. 
 
 Theaetetus, 150 [148], 152 [151]. 
 
 Ibid., 151 [150]. 
 
 Symposium, in The Dialogues of Plato, 333 [209]. 
 
 Nancy Demand comments that, in this way of thinking, women are 
 “considered capable only of giving birth to other females and to incom- 
 plete males” whose completion depends upon “a rebirthing process” 
 (Birth, Death, and Motherhood in Classical Greece, 139). Her remark is 
 made in the process of exploring the metaphor of male pregnancy (ibid., 
 134-40). She proposes that in this devaluation of women, Plato’s text re- 
 flects the prejudice of a society in which a boy must be born again “into 
 the symbolic order of ‘masculinity’ by men” (ibid., 139 [quoting David 
 Halperin]). M. F. Burnyeat notes about the Symposium that its “sexu- 
 alized view of teaching [is] devalued in that it has become separated 
 from the metaphor of mental conception and birth and is now associated 
 with sophistic education in pointed contrast to Socrates’ own approach” 
 (“Socratic Midwifery, Platonic Inspiration,” Bulletin of the Institute of 
 Classical Studies 24 [1977]: 9). 
 
 Burnyeat, “Socratic Midwifery, Platonic Inspiration,” 8. 
 
 John Osborne, The Paper Chase (New York: Houghton-Miffiin, 1971). 
 The Harvard Law Review published the outline for a lecture prepared 
 by Professor Areeda as a memorial to its author. I cite this piece from 
 among many others on the Socratic method in law school because it is 
 recent, because Areeda was “a master of the Socratic Method,” and be- 
 cause it is suggested to “represent the most perceptive analysis of the 
 core of legal pedagogy available in the literature” (introductory note to 
 Areeda, The Socratic Method (SM), 109 Harv. L. Rev. 911 [1996] [report- 
 ing the comments of Clark Byse, who recommended the piece to the 
 editors]). 
 
 In this manner the student “becomes confident that he can discover an- 
 swers that he didn’t suspect he knew” (Areeda, Socratic Method, 922). 
 This eventual internalizing of the process, Areeda says, “is the essence 
 of legal reasoning and the prize of the” method (ibid.). I am not sure 
 why this is not an illusion. It may not be an illusion that the student 
 sooner or later internalizes the process. But what of the thing internal- 
 ized—the process of the teacher? According to Areeda, the test of the 
 teacher’s skill lies in maintaining the illusion that the students have not 
 been led to the answers that the teacher could have given but did not 
 
 NOTES TO CHAPTER IO 213 
 
give ina lecture (ibid.). If that is true, doesn’t the student who internal- 
 izes the process internalize the maintenance of illusion? Is that the nub 
 of thinking like a lawyer? 
 
 14 Ibid., 915. Ina large class, the teacher cross-examines some students, and 
 their nonparticipating colleagues share the experience by silently going 
 through the motions of giving answers to the questions. “The risk of 
 being questioned induces this vicarious participation” (ibid., 916). 
 
 If students are more likely to stay awake and to learn better when they 
 actually practice thinking like lawyers and actually use the peculiar logic 
 of law to solve real problems, the Socratic method is not so good for the 
 purpose as that other method known as the law school clinic. There the 
 clients as well as the problems are assuredly real, and students really do 
 have to use legal materials like lawyers. In my experience, by exposing 
 students to real people with real problems, clinics expose students’ own 
 real need for knowledge and methodology in a way that excites their 
 attentive appetites for other classes taught by either lecture or question- 
 and-answer. The point has been well and repeatedly made to me by Steve 
 Wizner of Yale’s Legal Services Organization. 
 
 15 Some of the abuses, shortfalls, and inefficiencies of the Socratic method, 
 especially as practiced by those less able than Areeda, could be over- 
 come by translating it effectively into interactive electronic media. A 
 one-on-one virtual encounter between student and program at home or 
 in a school lab might be educationally and economically better than a 
 real or vicarious encounter between student and teacher in a large class. 
 Suitably humiliating comments by a virtual teacher could be individu- 
 alized and preselected by the student. Of course, if the Socratic method 
 has no essential need for a real teacher, it is not essentially Socratic. 
 
 To repair the weaknesses of the Socratic method and to rehearse its 
 advantages in comparison to lecturing does not establish its relation to 
 Socrates. Areeda does not intend it to. He does not address the issue. 
 
 The absence of a Socratic connection can be read into Areeda’s careful 
 observation that the law school method is “most useful in highly analyti- 
 cal (and somewhat less ideological) subjects, such as contracts” (ibid., 
 916), but unsuitable in ventilating “mega-level questions” like “What is 
 justice?” (ibid., 913). 
 
 16 Forcomment that the method is not midwifery, see Barbara Woodhouse, 
 Mad Midwifery: Bringing Theory, Doctrine, and Practice to Life, 91 Mich. 
 L. Rev. 1977, 1994 (1993) (“Socratic master commands the podium as 
 the high class surgeon commands the operating theater”). 
 
 17 That the method is a generally oppressive form of control is the point of 
 Duncan Kennedy’s send-up of law school in Legal Education and the Re- 
 production of Hierarchy: A Polemic against the System (Cambridge, Mass.: 
 Afar, 1983). I find that this work still provokes students to wonderful re- 
 
 214 NOTES TO CHAPTER IO 
 
—_ 
 
 sponses of all kinds. See also Karl Klare, The Law School Curriculum in 
 the 1980's: What’s Left? 32 J. Leg. Ed. 336 (1982). 
 
 For example, Jenny Morgan suggests that the method is “a powerful 
 model of a male-preferred style of interaction” that silences coopera- 
 tion and “may work differentially to silence women in the classroom” 
 (The Socratic Method: Silencing Cooperation, 1 Leg. Ed. Rev. 151, 161, 164 
 [1989]). Deborah Rhode notes that feminists’ perspectives “highlight 
 some of the most problematic aspects of law school pedagogy: the hier- 
 archical, authoritarian relationship between students and professors; the 
 competitive ethos of class participation and evaluation; and the effects 
 of these dynamics when other status inequalities such as race and gender 
 are also present” (Missing Questions: Feminist Perspectives on Legal Edu- 
 cation, 45 Stan. L. Rev. 1547, 1555 [1993]). (Margaret Jane Radin points 
 out the risk of reinforcing stereotypes in Rhode’s approach. See Reply: 
 Please Be Careful with Cultural Feminism, 45 Stan. L. Rev. 1567 [1993].) 
 See also Judith Resnik, Ambivalence: The Resiliency of Legal Culture in 
 the United States, 45 Stan. L. Rev. 1525 (1993). 
 
 Others have noted the identification of legal education with male- 
 ness and masculine qualities. See, e.g., Carrie Menkel-Meadow, “Women 
 as Law Teachers: Toward the ‘Feminization’ of Legal Education,” in 
 Humanistic Education in Law, Monograph III (New York: Project for the 
 Study and Application of Humanistic Education in Law, Columbia Uni- 
 versity School of Law, 1981), 16, 18. Susan Williams finds that the method 
 rests upon a mainstream epistemology that feminists challenge (Legal 
 Education, Feminist Epistemology, and the Socratic Method, 45 Stan. L. 
 Rev. 1571 [1993]). Fora study of how law school coursebooks and courses 
 can disenfranchise women, see Mary Jo Frug, Re-Reading Contracts: A 
 Feminist Analysis of a Contracts Casebook, 34 Am.U. L. Rev. 1065 (1985). 
 Plato did achieve a view of women as equals in the Republic, in Dialogues 
 of Plato, 1:710 [449]. But see Julia Annas, “Plato’s Republic and Femi- 
 nism,” Philosophy 51 (1976): 307; Sabina Lovibond, “An Ancient Theory 
 of Gender: Plato and the Pythagorean Table,” in Archer, Fischler, and 
 Wyke, Women in Ancient Societies, 88. 
 
 11. Socratic Midwifery That Is 
 
 Vlastos’s reading of Plato in general and in its specifics is controversial. 
 A friend who is a Plato scholar offered helpful criticism of a manuscript 
 for this book. He warned about the hazards of employing Vlastos’s ap- 
 proach. He noted that “the order of the dialogues itself is contentious, 
 and . . . most dialogues have at one time or another been assigned to 
 almost every period.” He also warned against constructing biographical 
 narratives of either Socrates or Plato out of the order of the dialogues. 
 
 NOTES TO CHAPTER II 215 
 
There is no cause—and Vlastos has no need—for me to defend his 
 interpretation. I find his position useful for present purposes and plau- 
 sible if not exclusively right. My friend asked: “Can’t you just argue that 
 maieutics, ironically unproductive in the Theaetetus, where the art is ex- 
 pounded, are productive elsewhere in the corpus?” That is more or less 
 what I argue, but I find it convenient and valid to follow Vlastos here in 
 identifying the “elsewhere” as the material he refers to as “earlier.” I do 
 not mean to endorse attempts to derive a biography of either Socrates 
 or Plato from the order of the dialogues. 
 
 2 Vlastos, Socrates, Ironist and Moral Philosopher, 46—47, 49. 
 
 3 Ibid., 155. See also pp. 46—53, 85, and the notes thereto. Vlastos describes 
 the earlier Socrates as “complicated, devious, cunning” (ibid., 133). 
 
 4 Ibid., 49. 
 
 5 Gorgias, 467. The translation is that of Vlastos (Socrates, Jronist and 
 Moral Philosopher, 156). (Jowett: “Either prove that I am in error or give 
 the answer yourself” [Dialogues of Plato, 1:525].) 
 
 6 He employs the e/enchos as his method of philosophical investigation. In 
 Vlastos’s description: “Socrates refutes a thesis p, defended by the inter- 
 locutor as his personal belief, by eliciting from him additional prem- 
 ises, say {q,r}, whose conjunction entails the negation of p. The refuta- 
 tion is accomplished by ‘peirastic’ argument: the refutand p, proposed 
 and defended by the interlocutor, is refuted out of his own mouth: p is 
 shown to be inconsistent with propositions in his own belief-system” 
 (Vlastos, Socrates, Jronist and Moral Philosopher, 266). It is a matter of 
 “making tria/ of one another in give-and-take argument,” 94 n. 53. James 
 Boyd White notes that in the dialectical conversation, “there are only 
 two parties to the conversation; they proceed by question and answer, 
 not making speeches; each promises to tell the truth as he sees it; each, 
 knowing that his own knowledge is defective, actively seeks refutation 
 from the other; and each, for the moment, is loyal only to that relation, 
 calling in no others as witnesses, asking what they think, but calling 
 only on the other party to the dialectic as his witness” (Acts of Hope 
 [Chicago: University of Chicago, 1994], 37). Clark Cunningham notes 
 that the Crito itself is not a good example of the kind of dialectic White 
 describes (Learning from Law Students: A Socratic Approach to Law and 
 Literature, 63 U. Cinn. L. Rev. 195 [1994]). 
 
 7 I. F. Stone, The Trial of Socrates (Boston: Little, Brown, 1988), 55. (Stone 
 
 ’ “negative dialectic” reg- 
 istered by both Cicero and Augustine, neither of whom was a hostile 
 critic [ibid., 60—6r].) 
 
 8 Vlastos contrasts the elenctic approach to the maieutic and so rejects the 
 
 takes note of the complaints about Socrates 
 
 midwife metaphor as appropriate to the early Socrates. See, e.g., Vlas- 
 tos, Socrates, Jronist and Moral Philosopher, 49, 85, and notes thereto. I 
 
 216 NOTES TO CHAPTER II 
 
think this is to throw the midwife out with the bathwater. The problem, 
 
 as I see it, is that the use of the midwife metaphor in the Theaetetus is in- 
 
 consistent with the performance in that dialogue. I think it is consistent 
 with what Socrates does in the earlier dialogues. I thus take the meta- 
 
 phor as a valid figure for what Socrates has been but will not always be. 
 
 I think that elenctics is maeiutics properly understood and practiced. 
 
 Burnyeat effectively takes the same position. See Burnyeat, “Socratic 
 
 Midwifery, Platonic Inspiration,” 9. See also Thomas Brickhouse and 
 
 Nicholas Smith, Plato’s Socrates (New York: Oxford University Press, 
 
 1994), 3-5- Following the narrator of the exodus, I take a robust view of 
 maieutics. 
 
 A Socratic encounter, when it works, leads to an ongoing examination 
 of the person, the person’s life and beliefs, the discrepancies between 
 the beliefs, and the discrepancies between the beliefs and the way one 
 lives. The movement is toward a coherent set of justifiable beliefs, a life’s 
 journey on the way to truth and virtue. It is a journey and it is lifelong 
 because truth seeking never settles into certainty. See Vlastos, Socrates, 
 
 Tronist and Moral Philosopher, 15, 113-15; and see generally Brickhouse 
 and Smith, Plato’s Socrates. 
 
 In this interpretation I depend upon not only Vlastos but also Thomas 
 Brickhouse and Nicholas Smith (Plato’s Socrates, 10-29). 
 
 Charmides, in Dialogues of Plato, 1:15 [165]. Socrates says he has the 
 mission of searching into himself as well as other men (Apology, in 
 Dialogues of Plato, 412 [29]). The dialogues seldom present him sub- 
 
 jected to Socratic examination by others. See Protagoras, in Dialogues of 
 Plato, 1:108—9 [338-339]; Gorgias, 520-25 [462-467]. But they do por- 
 tray him examining himself in examining others. See Brickhouse and 
 
 Smith, Plato’s Socrates, 16. 
 
 Republic, 1:618 [352]. 
 
 What he brings to his encounters are himself and his beliefs, and he puts 
 both to the test in testing others. And when he must finally appear in 
 court he offers himself and his beliefs once more as he always has. Even 
 in court in his own defense he has no prepared remarks. He uses, he 
 says, “the words and arguments which occur to [him] at the moment” 
 (Apology, 401 [17]). 
 
 He brings only himself and defends himself in his accustomed man- 
 ner of speaking and arguing and being. He explains that he cannot go 
 about in Athens without inquiring and speculating in his troubling man- 
 ner and that life in exile would be no different (ibid., 412 [29], 419 [37]). 
 He can no more hold his tongue abroad than he can in Athens. “Now I 
 have great difficulty in making you understand . . . this,” he says. “For 
 if I tell you that to [remain silent] would be a disobedience to the God, 
 and therefore that I cannot hold my tongue, you will not believe that I 
 
 NOTES TO CHAPTER II 217 
 
20 
 
 21 
 
 22 
 
 23 
 
 am serious; and if I say again that daily to discourse about virtue, and 
 of those other things about which you hear me examining myself and 
 others, is the greatest good of man, and that the unexamined life is not 
 worth living, you are still less likely to believe me” (ibid., 419-20 [37- 
 38]). 
 
 Crito, in Dialogues of Plato, 437 [53]- 
 
 White, Acts of Hope, 35. 1 have been well educated by White’s readings of 
 Plato, and I have been much influenced by his interpretation of Socrates. 
 In comparison to being not Socrates, death appears to be not so bad. 
 Either it is an undisturbed, welcome sleep, or it is a journey to another 
 world in which he can continue to be Socrates, only infinitely so and at 
 a higher level: “What would not a man give, O judges,” he says, “to be 
 able to examine the leader of the great Trojan expedition; or Odysseus or 
 Sisyphus, or numberless others, men and women too! What infinite de- 
 light would there be in conversing with them and asking them questions! 
 In another world they do not put a man to death for asking questions” 
 (Apology, 422 [41]). 
 
 Ibid., 417 [35]. 
 
 Ibid. 
 
 Brickhouse and Smith, Socrates on Trial (Princeton, N.J.: Princeton Uni- 
 versity Press, 1988), 199. 
 
 Gregory Vlastos’s description is “conduct which falls entirely within the 
 limits of the habitual expectations sustained by the institutional frame- 
 work” (Socrates, [ronist and Moral Philosopher, 180). 
 
 Vlastos says that Socrates “finds reason to stigmatize as unjust one of its 
 most venerable, best established, rules of justice” (ibid., 179). 
 
 Crito, 433 [49]. Vlastos’s translation: “We should never return a wrong 
 or do an evil to a single human being no matter what we may have suf- 
 fered at his hands. And watch out Crito, lest in agreeing with this you 
 do so contrary to your real opinion. For few are those who believe or 
 will believe this. And between those who do and those who don’t there 
 can be no common counsel. Of necessity they must feel contempt for 
 one another when viewing each other’s deliberations” (Socrates, [ronist 
 and Moral Philosopher, 194-95). 
 
 George Steiner holds that Socrates’ argument “contradicts not only 
 natural instinct, but the entirety of the heroic, masculine traditions 
 of the ancient Mediterranean world” (Wo Passion Spent [New Haven, 
 Conn.: Yale University Press, 1996], 381). A friend who offered good 
 criticism of an earlier version of this book noted that, in comparison to 
 its treatment of the midwives, the biblical texts generally treat women 
 dreadfully. He advised me to credit Plato for proposing that “women 
 could be guardians in his ideal state” and to credit “the Greek culture 
 more generally, which, while practicing nearly every unimaginable op- 
 
 218 NOTES TO CHAPTER II 
 
24 
 
 25 
 26 
 
 27 
 
 pression of women in almost every way, managed at the same time to 
 present women in their theater in a more accurate and respectful way, 
 more acknowledging of their individuality and importance, than per- 
 haps any other literature in the Western tradition.” I am glad to take his 
 advice. I do credit Plato’s achievement in the Republic and much admire 
 the dramatic achievements of Athena, Clytemnestra, Antigone, Medea, 
 and other powerfully memorable women. 
 
 Martha Nussbaum, The Use and Abuse of Philosophy in Legal Education, 
 45 Stan. L. Rev. 1627, 1630 n. 13 (1993). 
 
 Apology, 1:422 [41]. 
 
 “Socrates has no method, if by ‘method’ we mean an orderly procedure 
 which follows patterns that must be learned and mastered before one is 
 able to achieve effective results. There is no ‘cookbook’ for the Socratic 
 elenchos, nor could a step-by-step procedure ever be set forth. Any of 
 us could do what Socrates does, although, of course, not as well; and 
 according to Socrates, a// of us should do what he does. The fact that 
 we would get better at it with practice should be no impediment to our 
 undertaking Socratic examinations right away and for the rest of our 
 lives. Accordingly, we have nothing to learn before we employ Socrates’ 
 method. It follows from these considerations that Socrates thinks there 
 is no method to learn” (Brickhouse and Smith, Plato’s Socrates, 10). 
 Brickhouse and Smith begin with a description of the Socratic method 
 —as it is used generally and not only in law schools —that is very like 
 Areeda’s, but they resist seeing Socrates as a teacher of the sort we call 
 “Socratic.” They detect three primary distinctions: Socrates claims not 
 to know the subjects about which he asks questions; he denies that he is 
 a teacher (we never see his students master a lesson); and Socrates’ mis- 
 sion is destructive, not constructive (Plato’s Socrates, 3-4). Instead of 
 instructing students, Socrates invites others to join him in the search for 
 wisdom. 
 
 For comment that the Socratic method employed in law schools is not 
 Socratic, see, e.g., Thomas Shaffer and Robert Redmount, Lawyers, Law 
 Students, and People 8 (Colorado Springs: Shepards, 1977) (a “method of 
 intimidation” that “Socrates would decline the honor of being identified 
 with”); Harris Wofford, On the Teaching of Law and Justice, 53 N.Y.U. L. 
 Rev. 612, 614 (1978) (“usually not Socratic . . . what Socrates called eris- 
 tic”); William C. Heffernan, Not Socrates, But Protagoras: The Sophist 
 Basts of Legal Education, 29 Buftalo L. Rev. 399, 407 (1980) (“Protagoras 
 foreshadow[s] modern legal education and Socrates creat[es] a system 
 of moral education peculiarly his own”); James R. Elkins, Thinking Like 
 a Lawyer: Second Thoughts, 47 Mercer L. Rev. 511, 524 (1996) (“a per- 
 verted version of the Socratic dialogue”); Richard K. Neumann, A Pre- 
 liminary Ingutry into the Art of Critique, 40 Hastings L. J. 725, 728 (1989) 
 
 NOTES TO CHAPTER II 219 
 
(“not Socratic at all: the accurate term would be ‘Langdellian’ or even 
 ‘Protagorean’ ”). 
 
 “If law professors were to employ the educational methods of Soc- 
 rates, then they would violate the fundamental norms of their profes- 
 sion. However strong the current interest in moral issues surrounding 
 professional responsibility may be, law professors are not permitted to 
 use their classrooms to carry out direct moral instructions of their stu- 
 dents” (Heffernan, Not Socrates, but Protagoras, 412). See also sources in 
 Neumann, Preliminary Inquiry into the Art of Critique, 729 n. 18. 
 
 In correspondence with me, Thomas Eisele, whose Socratic life and 
 teaching are exemplary, says that he tends to speak of the differences be- 
 tween Socrates and the teaching that takes place in law schools in terms 
 of “the reality of the classroom,” a phrase which suggests the following 
 differences to him: “1. Our students are not met accidentally or occasion- 
 ally in the marketplace, but rather attend scheduled classes. . . . 2. The 
 enrollment in the class is settled and definite, not the ebb-and-flow of a 
 gathering or crowd where speakers and participants come and go. 3. The 
 object of our classroom presentations are ‘the class’ as a group, in gen- 
 eral, not individual law students or interlocutor. (These are just a few of 
 the separate conditions that define us differently from Socrates).” 
 
 28 Thomas Eisele’s series of fine essays on Socratic teaching contain worthy 
 suggestions for opening the classroom to the possibilities for self- 
 discovery, disillusionment, and appropriate teacher humiliation of a stu- 
 dent humanely contextualized by continuing friendship between teacher 
 and student outside class: Must Virtue Be Taught? 37 J. Legal Ed. 495 
 (1987); Never Mind the Manner of My Speech, 14 Legal Stud. F. 253 (1990); 
 Bitter Knowledge: Socrates and Teaching by Distllusionment, 45 Mercer L. 
 Rev. 587 (1994); and The Poverty of Socratic Questioning: Asking and An- 
 swering in the Meno, 63 U. Cinn. L. Rev. 221 (1994). 
 
 James R. Elkins helpfully and affectingly notes how teachers may fol- 
 low Socrates’ example to more acute classroom questioning, listening, 
 and seeing: Socrates and the Pedagogy of Critique, 14 Legal Studies Forum 
 231, 243 (1990). See also James Elkins, Reflections on the Religion Called 
 Legal Education, 37 J. of Leg. Ed. 522 (1987); Thinking Like a Lawyer: 
 Second Thoughts, 47 Mercer L. Rev. 511 (1996). 
 
 And John Cole thoughtfully argues that, if it is to be Socratic, the law 
 school method must help students understand that every position they 
 argue can be assailed and that they must therefore take responsibility 
 for ordering in a coherent, defensible way the values they do advocate 
 and hold (The Socratic Method in Legal Education: Moral Discourse and 
 Accommodation, 35 Mercer L. Rev. 867, 869 [1984]). 
 
 Amy Gutman is not a teacher of law, but she makes the fruitful sug- 
 gestion that law and the teaching of law could be rendered more Socratic 
 
 220 NOTES TO CHAPTER II 
 
29 
 
 by becoming more deliberative (Can Virtue Be Taught to Lawyers? 45 
 Stan. L. Rev. 1759 [1993]). 
 
 Although she does not mention Socrates, Barbara Woodhouse does 
 propose that teachers take the midwife image seriously and make of 
 classes “a collaborative experience, calling for encouragement, struc- 
 ture, and support, but most productive when students push themselves, 
 investing their own creative energy and sweat” (Mad Midwifery, 1981). 
 She does not specifically ground the metaphor but seems to have in mind 
 modern practices of midwifery. 
 
 Deborah Rhode suggests that the method could be improved by tak- 
 ing feminist (if not midwific) perspectives seriously: more focus on so- 
 cial contexts, more room for narrative, as well as interdisciplinary and 
 ethical materials and acknowledgment of differences (Missing Ques- 
 tions, 1563-64). 
 
 Students’ prior experience and their writing can be Socratically made 
 subjects in ways that allow the teacher to learn from the student. See 
 Cunningham, Learning from Law Students; Frances Ansley, Starting with 
 the Students: Lessons from Popular Education, 4 Rev. of L. & Women’s 
 Studies 7 (1994). John Denvir suggests that discussion of films has a 
 democratic effect because students are more visually adept at absorb- 
 ing a film than their older, print-bound teachers (introduction to Legal 
 Reelism (Urbana: University of Illinois, 1996], xii). 
 
 Martha Nussbaum proposes that Socrates’ foundational questioning 
 
 could be advanced in legal education by adding professional philoso- 
 phers to law school faculties (Use and Abuse of Philosophy, 45 Stan. L. 
 Rev. 1627 [1993]). But see Richard Posner, Overcoming Law (Cambridge, 
 Mass.: Harvard University Press, 1995), 463-67. 
 Socrates is never far below the surface of James Boyd White’s reflec- 
 tions on and engagement in legal education, and, beginning with his 
 first book, The Legal Imagination, he has pursued the question of how 
 one constitutes a life in law. I mark as centrally Socratic not only his 
 pursuit of the question in his writing but also his own, ongoing consti- 
 tution of such a life. See his reading of the Gorgias in When Words Lose 
 Their Meaning (Chicago: University of Chicago Press, 1984), 110, and 
 his imaginative re-creation of that dialogue in specific relation to law- 
 yers in Heracles’ Bow (Madison: University of Wisconsin Press, 1985). 
 See also his reading of the Crito in Acts of Hope, 2-44, and its placement 
 as the orienting first chapter of that book. 
 
 His notion of the relation between the text of the Gorgias and its 
 reader, of educative friendship and community, animates his approach 
 to the relation between teacher and student. So, for example, he says that 
 “law should be taught as a discipline of thought and argument with its 
 own structure, its own elements, at the center of which is the activity of 
 
 NOTES TO CHAPTER II 221 
 
claiming meaning for human experience, at the individual and collective 
 level, and doing so in a language that is at once a source of authority and 
 itself subject to perpetual revision” (White, Meaning in the Life of the 
 Lawyer, 25 Cumberland L. Rev. 763, 767 [1996]). See also White, Doc- 
 trine in a Vacuum: Reflections on What a Law School Ought (and Ought 
 Not) To Be, 18 J. L. Reform 251 (1985), and White, Law Teachers Writing, 
 91 Mich. L. Rev. 1970, 1972 (1993). 
 
 12. Are You the Lawyers? 
 
 —_ 
 
 Howard Lesnick’s goal is to have students ask themselves: “Who am I? 
 In my work as a lawyer, what will I be doing in the world? What do I 
 want to be doing in the world?” (Being a Teacher of Lawyers: Discerning 
 the Theory of My Practice, 43 Hastings L. J. 1095, 1097 [1992]). 
 
 tM 
 
 I often started with James Boyd White’s Legal Imagination. We did con- 
 tinue to read such authors as Ronald Dworkin, H. L. A. Hart, and 
 Richard Posner. 
 
 w 
 
 The encouraging examples included Howard Lesnick’s way of putting 
 himself into the subject matter of his teaching (Being a Teacher of Law- 
 ers), Thomas Shaffer’s and Andrew W. McThenia’s lawyering from, in, 
 and for communities (Shaffer, American Lawyers and Their Communti- 
 ties [Notre Dame, Ind.: Notre Dame University Press, 1991]; McThenia, 
 Civil Resistance or Holy Obedience? Reflections from within a Community 
 of Resistance, 48 Wash. & Lee L. Rev. 15 [1991]); and Clark Cunning- 
 ham’s way of working on cases with students and reflecting with them, 
 and with a client, on their performance (4 Tale of Two Clients: Think- 
 ing about Law as Language, 87 Mich. L. Rev. 2459 [1989]; The Lawyer 
 as Translator, Representation as Text: Towards an Ethnography of Legal 
 Discourse, 77 Cornell L. Rev. 1298 [1992]). 
 
 Also, in the process of writing my last book I had observed and inter- 
 viewed lawyers and judges for whom the practice of law is in fact a 
 medium of community. I was moved by them and wondered how their 
 example could be translated actively into forms of legal education. I had 
 been particularly well instructed by Steve Wizner at Yale and his clinical 
 work with students. 
 
 > 
 
 Gutman, Can Virtue Be Taught to Lawyers? 1770. But see Robert Cond- 
 lin, “Tastes Great, Less Filling”: The Law School Clinic and Political Cri- 
 tique, 36 Legal Educ. 45 (1986). 
 
 This is not an argument against the traditional law school classroom. In 
 
 al 
 
 my experience, by exposing students to real people with real problems, 
 clinics expose students’ real need for knowledge and methodology. The 
 exposure excites their attentive appetites for other classes taught by lec- 
 ture, question-and-answer, or some other method. 
 
 222 NOTES TO CHAPTER 12 
 
13 
 
 Howard Lesnick correctly maintains that “all teaching is clinical 
 teaching” (/nfinity in a Grain of Sand: The World of Law and Lawyering as 
 Portrayed in the Clinical Teaching Implicit in the Law School Curriculum, 
 37 UCLA L. Rev. 1157, 1158 [1990]). 
 
 On the history of Yale’s pioneering clinic and of clinics in general, see 
 Ball, The Word and the Law (Chicago: University of Chicago Press, 
 1993), 62—65. On the literature and approach of lawyering theory, see 
 Ball, Power from the People, 92 Mich. L. Rev. 1725 (1994) (review of 
 Gerald Lopez, Rebellious Lawyering); Ball, Jurisprudence from Below, 61 
 Tenn. L. Rev. 747, 759-62 (1994). 
 
 See Ball, Power from the People; Jurisprudence from Below. 
 
 William Stringfellow, 4 Private and Public Faith (Grand Rapids, Mich.: 
 Eerdmans, 1962), 69. 
 
 Ibid. 
 
 The statement comes from comments made by Hartigan on an early ver- 
 sion of this book. See Ball, Jurisprudence from Below, 764 and n. 74. 
 The connections continued outside class. I remember one hasty court- 
 house conversation with an embattled student who was attempting to 
 mediate a dispute between a landlord and a tenant. In the course of de- 
 scribing the problem and her mediation to me in a few sentences, she 
 twice drew comparisons to episodes in recent reading the class had dis- 
 cussed. One involved Huck Finn; the other Antigone. They had become 
 part of her working vocabulary of explanation. 
 
 Steve Wizner reports that students in the Yale Law School clinic some- 
 
 “ee 
 
 times complain: “ “This isn’t law, it’s social work!’ One flip response I 
 sometimes give is, ‘Don’t flatter yourself.’ More often I will ask: “What 
 do you think rich people’s lawyers do? Is there any real difference be- 
 tween our helping a client to apply for welfare or Social Security or pub- 
 lic housing, and a rich person’s lawyer accompanying a client to a gov- 
 ernment agency to apply for a license, or negotiating on his behalf the 
 purchase of a condominium?’ ” (Wizner, “Beyond Skills Training: Some 
 Reflections upon Approaching My First Quarter Century as a Clinical 
 Teacher” [paper presented at the Association of American Law Schools 
 Section on Clinical Legal Education, Orlando, Fla., January 6, 1994]). 
 In the desert following the exodus, the Israelites called the flakelike thing 
 they gathered for food “manna.” This descriptive label may be read as 
 the question they kept asking: “Man hu? Man hu?” (What’s this? What’s 
 this?). 
 
 Of course, in order to become a law school student a person will have 
 acquired considerable experience in the successful navigation of insti- 
 tutions, bureaucracies, and funding sources. Accordingly, before they 
 are licensed to practice, my students already possess well-developed, 
 result-oriented skills in advocacy that they can put to good use on be- 
 
 NOTES TO CHAPTER I2 223 
 
half of clients. The students are usually slow to recognize this acquired 
 usefulness and to recognize it as distinctive. 
 
 15 “Clients need lawyers not only to hear their stories,” Robert Dinerstein 
 notes, “but also to help them shape those stories to make them as effec- 
 tive as possible within the existing legal milieu, or to collaborate with 
 them to devise the best means to transform it” (4 Meditation on the Theo- 
 retics of Practice, 43 Hastings L. J. 971, 985 [1992]). 
 
 16 “Katie Davis Visits with Poet Jimmy Santiago Baca,” All Things Con- 
 sidered, National Public Radio, June 5, 1993 (available from Lexis, New 
 Library, Script File at *2). 
 
 17 Ibid., 8. 
 
 18 For an imaginative reflection on Bartleby, the lawyer’s scrivener, see 
 Robin West, Jnvisible Victims: A Comparison of Susan Glaspell’s “Jury 
 of Her Peers,” and Herman Melville’s “Bartleby the Scrivener,” 8 Cardozo 
 Studies in Law and Literature (1996): 203. 
 
 13. Miriam 
 
 _ 
 
 Trible, God and the Rhetoric of Sexuality, 69. 
 
 2 Biblical scholars identify this song at the sea as one of the oldest extant 
 writings in the Bible. See, e.g., Stalker, “Exodus,” 222-23. 
 
 3 On biblical women and war songs, see Setel, “Exodus,” 31-32. 
 
 4 Katherine Doob Sakenfeld, “Numbers,” in Newsom and Ringe, Women’s 
 Bible Commentary, 45, 48. 
 
 5 See Setel, “Exodus,” 29. 
 
 6 Aaron’s death is more elaborately reported at the end of the same chap- 
 
 ter (Num. 20:22~29). Sakenfeld: “That her death is reported at all sug- 
 
 gests her importance, and the location of her death geographically and 
 
 narratively functions to raise her status closer to that of her brothers” 
 
 (“Numbers,” 48). 
 
 14. Rachel 
 
 —_ 
 
 Rachel sent her maid Bilhah to Jacob to bear children in her stead. Leah’s 
 
 maid Zilpah also bore children to Jacob (Gen. 30:1-13). 
 
 2 “When she was in her hard labor, the midwife said to her, ‘Do not be 
 afraid; for now you will have another son’ ” (Gen. 35:17). This is the first 
 mention of midwives in the Bible. 
 
 3 One tradition places Rachel’s tomb in the territory of Benjamin, north of 
 Jerusalem (see I Sam. 10:2, Jer. 31:15); another south of Jerusalem (Gen. 
 35:16, 48:7; Matt. 2:16-18). The latter site is the one “shown to tourists 
 today” (New Oxford Annotated Bible, 353 [note to I Sam. 10:2]). 
 
 4 Gen. 49:29-33. In one tradition, Jacob’s tomb is east of the Jordan (Gen. 
 
 224 NOTES TO CHAPTER 14 
 
wa 
 
 —_ 
 
 50:5, 10). In another it is at Machpelah, near Mamre, Abraham’s burial 
 site (Gen. 50:13). 
 
 Genesis Rabbah, vol. 3 trans. Jacob Neusner (Atlanta: Scholar’s Press, 
 1985), 82:10 trans. Rashi quotes a midrash elaborating Jacob’s deathbed 
 words to Joseph: “I did not even take her to Bethlehem, bring her into 
 the Holy Land, proper. I know you resent this. But you know that it 
 was at the command of God that I buried her there, so that she might 
 be a help to her children. When Nebuchadnezzar will send them into 
 exile, and they pass her grave, ‘there on the road, Rachel will come out 
 of her grave and cry and ask mercy for them” (Rashi, Gen. 48:7. See 
 Pesikta Rabbati 3). See Avivah Gottlieb Zornberg, Genesis: The Begin- 
 ning of Desire (Philadelphia: Jewish Publication Society, 1995), 213, 305. 
 I am indebted to Rachel Wizner for the gift of this book, one of many 
 and various, much-needed gifts that she and Steve have bestowed on my 
 family. 
 
 See also Suzanne Last Stone, “Justice, Mercy, and Gender in Rab- 
 binic Thought,” 8 Cardozo Studies in Law and Literature (spring—summer 
 1996): 156-57. 
 
 They will return by the road on which they were driven out (Jer. 31:21). 
 In line with the rabbinic commentary, this would presumably be the road 
 by which Rachel is buried. 
 
 Robert Alter observes that there is “no absolute fit between the nature 
 of reality and the human mind. The biblical tale is fashioned in ways 
 that repeatedly remind us of that ontological discrepancy” (The World 
 of Biblical Literature [New York: Basic Books, 1992], 22). 
 
 15. Jeremiah’s Rachel Poem 
 
 Trible, God and the Rhetoric of Sexuality, 40-50. 
 
 In the same verse, instead of having Rachel inconsolable because her 
 sons “are no more,” Trible has Rachel say: “Oh, not one here.” The effect 
 is to give Rachel voice in words that fade “into the silence of desola- 
 tion” (ibid., 40). In verses 15-16, Trible also employs the repeated phrase 
 “oracle of Yahweh” instead of John Bright’s “Yahweh’s word” (Bright, 
 “Jeremiah,” in The Anchor Bible [New York: Doubleday, 1965], 275) or 
 “says the Lord” in the New Revised Standard Version. However ren- 
 dered, the formula underwrites God’s promise. 
 
 Bright, “Jeremiah,” 275. Trible extends the female imagery with “I will 
 truly show motherly compassion upon him.” Her translation suits the 
 parental, motherlike voice of the strophe. I have taken verse 21 from the 
 NRSV and 22a from Bright, “Jeremiah.” 
 
 4 Bright, “Jeremiah,” 276, 282. 
 5 Trible, God and the Rhetoric of Sexuality, 45. 
 
 NOTES TO CHAPTER I5 225 
 
No’ .60) “Il! "GN 
 
 12 
 
 — 
 
 2 
 
 Ibid., 46. 
 
 Ibid., 48. 
 
 Ibid., 50. 
 
 Ibid., 40, 50. 
 
 Ibid., 50. 
 
 Jonathan Kozol, for example, gave “Rachel” as the pseudonym fora lead 
 figure in his book on homeless families in America and titled the volume 
 Rachel and Her Children (New York: Crown Publishers, 1998). It is to be 
 remembered, too, that at the end of Herman Melville’s Moby-Dick, the 
 Rachel was the ship in distress searching for her captain’s child. 
 
 Trible, God and the Rhetoric of Sexuality, 48. 
 
 Moses is remembered this way in Psalms as well: “Therefore [God] said 
 he would destroy [the people] —had not Moses, his chosen one, stood 
 in the breach before him, to turn away his wrath from destroying them” 
 (Ps. 106:23). 
 
 Rabbinic literature envisions a trial scene: Moses and the patriarchs ap- 
 peal to God on behalf of Israel, but it is Rachel who moves God to 
 mercy (Lamentations Rabbah, trans. Jacob Neusner [Atlanta: Scholars 
 Press, 1989], 24, 72-79). On this interpretation, Rachel’s story clearly 
 surpasses Moses’ arguments. 
 
 In the midrash Moses and the patriarchs make unsuccessful legal argu- 
 ments. Rachel appears and instead of making an argument tells a story 
 about having to share her husband with Leah, about her jealousy, and 
 about conquering that jealousy. If she, a mere mortal, has overcome jeal- 
 ousy, she asks, how can God be jealous of idols and allow her children to 
 be killed for worshiping them? God’s pity is stirred, and for Rachel’s sake 
 he agrees to restore Israel. For suggestive reflections on the midrash, see 
 Zornberg, Genesis, 374-81; and Stone, “Justice, Mercy, and Gender in 
 Rabbinic Thought.” 
 
 Stone treats the anthropomorphisms as personifications of concepts. 
 The narrative depictions of tension in the person of God are a form for 
 affirming both God’s transcendence and His relationship with humanity, 
 and “this tension is played out in literary terms to such an extent that 
 at times God appears as two separate, contrasting ‘characters’ ” (“Jus- 
 tice, Mercy, and Gender in Rabbinic Thought,” 147). One is aligned with 
 justice, the other with mercy. 
 
 16. Law and Tears 
 
 The judge’s “duty is, not to make a present of justice, but to give judg- 
 ment; and he has sworn that he will judge according to the laws, and not 
 according to his own good pleasure” (Apology, 417 [35]). 
 
 State v. Post, 20 N.J.L. 368 (1845). 
 
 226 NOTES TO CHAPTER 16 
 
3 
 
 nN 
 
 Ball, The Play’s the Thing: An Unscientific Reflection of Courts under the 
 Rubric of Theater, 28 Stan. L. Rev. 81 (1975); Promise of American Law, 
 
 42-94. 
 
 Herman Melville, Billy Budd, Sailor, in Billy Budd, Sailor and Other 
 Stories, ed. H. Beaver (Harmondsworth, U.K.: Penguin, 1981), 317, 388. 
 Aviam Soifer draws attention to the figure of the ship’s surgeon in Billy 
 Budd: “The surgeon, like us, knows that much is unknowable and more 
 is ‘not susceptible to proof.’ His plight and his retreat into formalism and 
 duty speak to us, and to our possibilities and limitations in thinking with 
 skeptical realism about law” (Status, Contract, and Promises Unkept, 96 
 Yale L. J. 1916, 1957 [1987]). Soifer notes Melville’s double pun in con- 
 cluding a chapter with this narrative comment about the surgeon: “And 
 rising from the mess he formally withdrew” (ibid.). 
 
 In Sophocles’ Antigone, for example, Creon’s struggle to uphold the law 
 of the state meant for him struggling to be not womanly, and the con- 
 sequence was that he became the cursed killer of his children (Antigone, 
 trans. Elizabeth Wyckoff, in Greek Tragedies, ed. David Grene and Rich- 
 ard Lattimore [Chicago: University of Chicago Press, 1968], 1:224. 1305 
 6). 
 
 Jeremy Bentham, Rationale of Judicial Evidence, in Works of Jeremy Ben- 
 tham, ed. J. Bowring (New York: Russell and Russell, 1838-1843), 6:353, 
 354 passim. 
 
 Hannah Arendt, On Revolution (New York: Viking, 1965), 78. 
 
 Ibid., 82. 
 
 Ball, Promise of American Law. 
 
 I explored this subject in Lying Down Together (Madison: University of 
 Wisconsin Press, 1985). 
 
 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 431 (1819). 
 
 The Federalist, no. 51, ed. Jacob Cooke (Middletown, Conn.: Wesleyan 
 University Press, 1961), 352. (Madison). 
 
 The Antelope, 23 U.S. (10 Wheat.) 66, 116—20 (1825). 
 
 Ibid., 121. 
 
 Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543, 591-92 (1823). 
 
 388 U.S. 307 (1967). 
 
 See ibid., 217; Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969). 
 
 388 U.S. 321. 
 
 481 U.S. 279 (1987). 
 
 Ibid., 314-15. 
 
 The Federalist, no. 1, 3 (Hamilton). 
 
 Arendt, On Revolution, 79. 
 
 Ibid., 81. 
 
 H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 
 1961), 206. 
 
 NOTES TO CHAPTER 16 227 
 
25 
 
 26 
 
 27 
 
 28 
 
 29 
 
 30 
 
 31 
 
 32 
 33 
 
 34 
 
 See Ball, Stories of Origin and Constitutional Possibilities, 87 Mich. L. 
 Review 2280, 2304~—9 (1989). For an extended examination of the phe- 
 nomenon, see Ball, Constitution, Court, Indian Tribes, 1987 A.B.F. Res. 
 jet 
 
 Mark Twain, The Adventures of Huckleberry Finn, in Mark Twain: Mis- 
 stssippt Writings, ed. Guy Cardwell (Library of America, 1982), 714. 
 Paul Valliere, quoted in Paul Lehmann, Transfiguration of Politics, 286 
 (italics omitted). See Ball, Word and the Law, 134. 
 
 It is no part of self-transcendence for a court simply to point to or de- 
 fer to a legislature beyond itself. That is a fundamentally self-referential 
 gesture and a technique for avoiding responsibility. See Ball, Word and 
 the Law, 145-46. 
 
 See, e.g., Frances Ansley, Standing Rusty and Rolling Empty: Law, Pov- 
 erty, and America’s Eroding Industrial Base, 81 Georgetown L. Rev. 1757, 
 1758 (1993). “For instance, criticisms of the human suffering and so- 
 cial chaos engendered by sudden capital flight from the U.S. or by sud- 
 den capital infusion into Mexico are repeatedly met with a nested set of 
 economic arguments,” which have to be understood and met (Ansley, 
 The Gulf of Mexico, the Academy and Me: Hazards of Boundary Cross- 
 ing, 78 Soundings [1995]: 92). She recognized that travel across borders 
 risks incompetence in new territory, and she did not minimize the dan- 
 ger (ibid., 94). She would face academic border guards quick to repel 
 and punish disciplinary intrusions (ibid., 96—97). But she also held the 
 conviction that uncrossed boundaries may restrict vision, sever what 
 should be joined, monopolize information, and prevent challenges to 
 existing arrangements (ibid., 95). She therefore aimed not at some de- 
 fensive “performance before an elite circle of highly trained specialists, 
 but rather at an inclusive and expanding conversation carried on among 
 a diverse group of people,” some of whom represent different disciplines 
 and some of whom did not complete high school (ibid., 98). 
 
 She recounts the odyssey affectingly in The Gulf of Mexico. Along the 
 way she engaged in collaborative research with two “articulate, brave, 
 and seasoned organizers for the rights of working people, Luvernel 
 Clark and Shirley Reinhardt” (ibid., 69). 
 
 “*Maquiladoras’ are foreign-owned factories that produce or partially 
 produce goods in Mexico for export back into the United States, using 
 low-wage Mexican labor. They are mostly U.S.-owned and mostly lo- 
 cated along the U.S.-Mexican border” (Gulf of Mexico, 79). 
 
 Ibid., 82. 
 
 Ansley, North American Free Trade Agreement: The Public Debate, 22 Ga. 
 J. Int’] & Comp. L. 329, 398 (1992). 
 
 Ansley, Gulf of Mexico, 84. 
 
 228 NOTES TO CHAPTER I6 
 
35 
 
 36 
 37 
 38 
 39 
 40 
 4] 
 
 42 
 43 
 44 
 45 
 46 
 47 
 48 
 49 
 50 
 51 
 52 
 53 
 
 54 
 
 55 
 
 56 
 57 
 
 58 
 59 
 
 60 
 
 61 
 
 Ibid., 85. See also accounts in North American Free Trade Agreement, 
 392-403. 
 
 Ibid., 85. 
 
 Ansley, North American Free Trade Agreement, 391. 
 
 Ansley, Gulf of Mexico, 87-88. 
 
 Ansley, North American Free Trade Agreement, 399. 
 
 Luvernel Clark, cited in ibid., 394. 
 
 Ansley, Standing Rusty and Rolling Empty, 1758 (quoting “Elena,” a 
 pseudonym for an interviewed worker). 
 
 Ansley, Gulf of Mexico, 101-2. 
 
 Ibid., 89, 102. 
 
 See, e.g., Ansley, Standing Rusty and Rolling Empty. 
 
 Ibid. 
 
 See Ibid., 1762-63. 
 
 Ibid., 4or. 
 
 Ibid. 
 
 Ibid., 330-31. 
 
 Ibid., 332. 
 
 Ibid., 1890. 
 
 Ibid., 1785. 
 
 Aeschylus, The Choephori, trans. Philip Vellacott (London: Penguin, 
 1956), 106, l. 82. 
 
 See Telford Taylor, Nuremberg and Vietnam: An American Tragedy (Chi- 
 cago: Quadrangle Press, 1970); Richard Falk, The Vietnam War and 
 International Law (Princeton, N.J.: Princeton University Press, 1968); 
 Robert Cover, The Folktales of Justice: Tales of Jurisdiction, 14 Capital 
 U.L. Rev. 179, 197-203 (1985). 
 
 John Duffett, ed., Against the Crime of Silence, Proceedings of the Inter- 
 national War Crimes Tribunal (New York: Bertrand Russell Peace Foun- 
 dation, 1968). 
 
 Cover, Folktales of Justice, 202. 
 
 On the recent history and theory of supranational courts, not people’s 
 tribunals, see Laurence Helfer and Anne-Marie Slaughter, Toward a 
 Theory of Effective Supranational Adjudication, 107 Yale L. J. 273 (1997). 
 S. J. Res. 19, 103d Cong., 1st Sess., 107 Stat. 1519 (1993). 
 
 See James Anaya, The Native Hawauan People and International Human 
 Rights Law: Toward a Remedy for Past and Continuing Wrongs, 28 Ga. L. 
 Rev. 309 (1994). 
 
 Na Maka o ka’ Aina, Peoples’ International Tribunal Hawai‘i 1993 (1994) 
 (3020 Kahaloa Drive, Honolulu, Hawai'i 96822). 
 
 1891 Commissioner of Indian Affairs Annual Report 412 (report of 
 J. George Wright, Rosebud Agency, Aug. 27, 1891), quoted in Allison 
 
 NOTES TO CHAPTER 16 229 
 
Dussias, Ghost Dance and Holy Ghost: The Echoes of Nineteenth-Century 
 Christianization Policy in Twentieth-Century Native American Free Exer- 
 cise Cases, 49 Stan. L. Rev. 773, 799 (1997)- 
 
 62 Black Elk, Black Elk Speaks, ed. John Neihardt (Lincoln: University of 
 Nebraska Press, 1979), 270. 
 
 63 Ibid., 274. 
 
 64 For comments on the subsequent failures of NaFTA, see Lori Wallach 
 and Michelle Sforza, “NAFTA at 5,” The Nation, January 25, 1999, 7. 
 
 In Hawai‘i, the tribunal has subsequently drawn no notice, but the 
 role of the native peoples has figured in three prominent controversies. 
 One was set in motion in 1993 by the Hawai‘ state legislature osten- 
 sibly to ascertain the opinion of the Kanaka Maoli on their governmen- 
 tal future as a distinct people. A plebiscite was held in 1996. More than 
 eighty thousand ballots were mailed, and less than thirty-one thousand 
 were cast. Most of those who voted favored electing delegates to a kind 
 of constitutional convention. That election took place in 1999. A con- 
 vention was slated for 1999. The leading native sovereignty groups op- 
 posed the plebiscite and the election, and they oppose the convention. 
 They have urged boycotts. (Opponents have included Kekuni Blaisdell 
 and Mililani Trask, prime minister of the native Ka Lahui.) They have 
 done so because it is a state-managed process instead of being interna- 
 tionally supervised, there was insufficient education of the electorate, 
 most ballots were not returned, and all the alternatives were never pre- 
 sented. For example, in confirmation of the limited options presented 
 to the Kanaka Maoli, both Hawai‘i’s governor Ben Cayetano and sena- 
 tor Daniel Inouye reportedly said they would never permit an indepen- 
 dent Hawaiian nation. See Mindy Pennybacker, “Should the Aloha State 
 Say Goodbye? Natives Wonder,” The Nation, August 12, 1996 (1996 WL 
 9220584). 
 
 Another controversy swirls around the Bishop Estate, a charitable 
 trust created in the nineteenth century by Princess Bernice Pauahi 
 Bishop, the last direct descendant of King Kamehameha. The trust holds 
 the largest private tract of land in the islands, 8 percent of Hawai'i, 
 and worldwide investments valued in the billions of dollars. The income 
 is used to fund private schools for children of Hawaiian ancestry, the 
 Kamehameha Schools. Of fifty-five thousand Hawaiian children, only 
 three thousand are educated in these schools. The five trustees of the 
 estate have been closely aligned with the political establishment. A pro- 
 bate judge removed four of them from office after a lengthy struggle that 
 featured charges of mismanagement, conflicts of interest, self-dealing, 
 and lavish trustee compensation. Sovereignty groups have been sharply 
 critical of the way the trustees performed. See Todd S. Purdum, “For $6 
 
 230 NOTES TO CHAPTER 16 
 
Billion Hawaii Legacy, a New Day,’ New York Times, May 15, 1999, p- 1, 
 col. 4, national edition. 
 
 The third controversy revolved around the election of a different set 
 of trustees, the trustees of a state agency, the Office of Hawaiian A ffairs. 
 The OHA was created in 1959 upon Hawai‘i’s admission to the union as 
 the fiftieth state. As part of that admission, the United States granted 
 Hawai'i title to 1.8 million acres of public lands to be held as a trust 
 for purposes that include support of public education and the benefit 
 of native Hawaiians. The oHA was established to address the needs of 
 native Hawaiians and to utilize the public land trust for their better- 
 ment. (The two hundred thousand acres of Hawai‘i Homelands set aside 
 in 1920 are separately managed by the Department of Hawaiian Home- 
 lands.) The ona trustees and their electors must be of aboriginal Hawai- 
 ian descent. Harold Rice, a Caucasian resident of Hawai‘i, brought suit 
 in federal court challenging his exclusion from voting for OHA trustees. 
 Both the District Court and the Ninth Circuit Court of Appeals upheld 
 the limitation to Hawaiians, but the Supreme Court has accepted the 
 case for review. See Rice v. Cayetano, 146 F3d 1075 (9th Cir. 1998), U.S. 
 Supr. Ct. No. 98-818; Linda Greenhouse, “Justices to Weigh Race Bar- 
 rier in Hawaiian Voting,” New York Times, March 23, 1999, p. A18, col. 1, 
 national edition. 
 
 17. The Womb of God and Tears 
 
 John Calvin, /nstitutes of the Christian Religion, trans. John Allen (Grand 
 Rapids, Mich.: Eerdmans, 1949), 47. 
 
 Alter, Art of Biblical Poetry, 212. 
 
 E.g., 6:24, 22:23. The conclusion of one poem is particularly and starkly 
 affecting —a woman in labor attended by murderers rather than mid- 
 wives: “For I heard a cry as of a woman in labor, anguish as of one bring- 
 ing forth her first child, the cry of daughter Zion gasping for breath, 
 stretching out her hands, “Woe is me! I am fainting before killers!’ ” 
 (4:31). 
 
 Trible, God and the Rhetoric of Sexuality, 41, 42, 46-47. 
 
 See ibid., 48. 
 
 Ibid., 50. The same sense of protectively surrounding is present in Psalm 
 32:7, 10 and, notably, in the song Moses recites near the end of Deuter- 
 onomy (32:10). 
 
 The image of the word as fructifying rain is employed in Moses’ song 
 (Deut. 32:1-3). In the vocabulary of native Hawaiians, rain is semen. 
 “At the very beginning of the poem stands the prophetic formula ‘thus 
 
 NOTES TO CHAPTER I7 231 
 
says the Lord, so that even the voice of Rachel comes under its rubric’ ” 
 (Trible, God and the Rhetoric of Sexuality, 47). 
 9 Ibid., 42. 
 10 Robert Jenson observes: “God . . . is identified by the narrative of which 
 his word by his prophets and our answering prayer make the dialogue. 
 Therefore also the conversational form of his word cannot be regarded 
 as a contingent adaptation to the existence or need of creatures. ‘In the 
 beginning, the Word ‘is’ not only God, but also ‘with’ God” (Systematic 
 Theology, 80). 
 Sakenfeld, “Numbers,” 48. 
 
 _ 
 — 
 
 III. The Gospel According to John 
 
 _ 
 
 See, e.g., Raymond E. Brown, The Gospel According to John I-XII, 
 vol. 29 of The Anchor Bible (New York: Doubleday, 1966), lx; Brown, 
 The Gospel According to John XIII-XXI, vol. 29A of The Anchor Bible 
 (New York: Doubleday, 1970), 949-52; Wayne A. Meeks, The Prophet- 
 King: Moses Traditions and the Johannine Christology, XIV Supplements 
 to Novum Testamentum (Leiden: Brill, 1967); Severino Pancaro, The 
 Law in the Fourth Gospel, XLII Supplements to Novum Testamentum 
 (Leiden: Brill, 1975); D. Moody Smith, The Theology of the Gospel of John 
 (Cambridge: Cambridge University Press, 1995); Smith, John (Philadel- 
 phia: Fortress, 1986). Throughout I have relied upon Brown and been 
 well instructed by Smith. 
 
 I shall have occasion to take up only some of the details of Moses’ 
 presence in the Gospel of John. Included in the omitted material are 
 resonances of his pharaonic temptation (6:15) and his bringing water 
 from the rock (7:37—38). 
 
 18. The Jerusalem Trial 
 
 _ 
 
 Whether this prologue is an adaptation of a preexisting pre-Christian or 
 early church hymn is a subject for discussion among biblical scholars. 
 So is the question of which lines may be read as the poem— whether, 
 for example, the lines incorporating John the Baptist are prose interrup- 
 tions of the poetry. A judicious summary of the scholarly discussion, the 
 translation choices, and the interpretation of the prologue is provided 
 in Brown, John, 29:1-37. 
 
 Brown’s translation of the prologue presents as prose intercalations 
 verses 6—9, 12a—13, 15, and 17-18 (see ibid., 3-4) and thereby helpfully 
 emphasizes the lines on John the Baptist as openings in the christological 
 hymn. 
 
 232 NOTES TO CHAPTER 18 
 
I have not separated these lines— set them off as prose— both because 
 I lack the competence to make judgments about sources and because I 
 am primarily concerned with the text as we now have it and with how 
 we now may read it. In this I join Frank Kermode’s approach to John in 
 The Literary Guide to the Bible (440-66). 
 
 In translating the first eighteen verses, I bore in mind the King James 
 Version, the Revised Standard Version, and the New Revised Standard 
 Version, as well as Brown’s translation, and employed the Greek text 
 in the twenty-third edition of Eberhard Nestle, Novum Testamentum 
 Graece, ed. Erwin Nestle and Kurt Aland (Stuttgart: Privilegierte Wur- 
 temburgische Bibel Anstalt, 1957). 
 
 To say that the Word was God does not imply that He has ceased to be 
 God. “Was” also carries the sense of “is.” 
 
 After the prologue, there are other ties between John the Baptist and 
 Jesus and the disciples of each in 1:19—42, 3:22—30, 5:33—36, and 10:40- 
 42. (Compare the treatment of John the Baptist in the Synoptic Gospels. 
 According to Luke 1, John the Baptist was a kinsman of Jesus.) From 
 these textual relations between the two, it is possible to conclude that 
 former disciples of John the Baptist played a continuing role in the 
 Church that was the matrix of the gospel. 
 
 Rudolph Bultmann theorized that the prologue was based on a hymn 
 of the Baptist community (Das Evangelium des Johannes [Gottingen, 
 1941], translated as The Gospel of John: A Commentary, trans. G.R. 
 Beasley-Murray et al. [Philadelphia: Westminster, 1971], 18. See also 
 ibid., 84-97, 108, 174). J. Massingberde Ford argued that the bulk of 
 Revelation originated in the visions and message of John the Baptist 
 (Revelation, vol. 38 of The Anchor Bible [New York: Doubleday, 1975], 
 28-40, 50-56). 
 
 The Gospel of John, the three Epistles of John, and Revelation may 
 have arisen out of a particular circle of early Christians. It has been ar- 
 gued that there was a Johannine community. See generally Raymond E. 
 Brown, The Community of the Beloved Disciple (New York: Paulist Press, 
 1979); Oscar Cullmann, The Johannine Circle (Philadelphia: Westmin- 
 ster, 1976). Such a community or movement may have arisen in Palestine 
 and removed to Ephesus; may have arisen among Jews, including fol- 
 lowers of John the Baptist; and may have had close ties to Jesus through 
 one or more of his disciples. 
 
 There are several Johns to be sorted out here. Besides John the Bap- 
 tist there are four other Johns. Each of these four has been considered as 
 the John who authored the gospel: (1) John the son of Zebedee and one 
 of the Twelve Apostles of Jesus; (2) the “beloved disciple” (John 13:23- 
 26, 19:25—27, 20:2—I0, 21:7, 21:20—23, 21-24) who may have played a 
 central role in the Johannine community and who may or may not have 
 
 NOTES TO CHAPTER 18 233 
 
been John the son of Zebedee or some other John; (3) John Mark, a part- 
 time companion of Paul; and (4) John the Presbyter, who may have been 
 among Jesus’ followers and/or a leader of a Christian community in 
 Ephesus. The evidence and arguments about authorship are presented 
 and evaluated in Brown, John, 29:lxxxvii-cii. 
 
 Brown himself tended to the hypothesis that John the son of Zebe- 
 dee was the “beloved disciple” and that the “beloved disciple” was the 
 origin of the Johannine tradition (ibid., xcviii—cii). Later, by the time 
 he wrote The Community of the Beloved Disciple in 1979, Brown had 
 changed his mind about identifying the “beloved disciple” as John the 
 son of Zebedee and tended to Cullmann’s theory that the name of this 
 disciple cannot be known, although he may have been a disciple of John 
 the Baptist, and then a follower of Jesus when Jesus was close to the Bap- 
 tist, and then a companion of Jesus in the last days. See Brown, Commu- 
 nity of the Beloved Disciple, 33-34, 176-78 discussing Cullmann’s Johan- 
 nine Circle). 
 
 That the “beloved disciple,” whoever he was, was the source for the 
 gospel is the statement of the text itself: “This is the disciple who is tes- 
 tifying to these things and has written them, and we know that his tes- 
 timony is true” (21:24). It is tradition and not the text that identifies the 
 gospel as “according to John.” 
 
 The textual statement about the disciple “whom Jesus loved” appears 
 to be made by another or others not that disciple (“we know that hzs tes- 
 timony is true”). If so, the reader could conclude that more than one 
 hand had been at work in what we now have as the gospel. Brown’s re- 
 view leads him to the supposition that the gospel reached its final form 
 between a.pD. 90 and 100 in Ephesus within the Johannine community 
 (Brown, John, 29:lxxx—lxxxvi, ciii-civ), and he hypothesizes—an “ad 
 hoc theory” (idid., cii)— five stages of composition: (1) a body of ma- 
 terial from the beloved disciple similar to but independent of that in 
 the other gospels; (2) its development in preaching and teaching; (3) its 
 organization into a consecutive gospel in Greek by the evangelist; (4) a 
 second edition by the evangelist; and (5) a final edition by a redactor 
 (ibid., xxxiv—xxxix). The author of the Epistles of John identifies himself 
 as “the Presbyter.” Brown offers no name for him either. 
 
 With respect to the Johannine corpus, Brown thus posits four figures: 
 the beloved disciple who was the source of the Johannine tradition about 
 Jesus, the evangelist, the final redactor of the gospel, and the Presbyter 
 who authored the Epistles (The Epistles of John, vol. 30 of The Anchor 
 Bible [New York: Doubleday, 1982]). The author of Revelation may now 
 constitute a fifth figure for Brown. Brown had agreed with the view that 
 Revelation was authored by John, son of Zebedee (Brown, John, 29:cii) 
 but was subsequently persuaded otherwise. “All that can be said is that 
 
 234 NOTES TO CHAPTER 18 
 
> 
 
 wn 
 
 nN 
 
 the author was an unknown Christian prophet named John” (Brown, 
 Epistles of John, 57 n. 131). 
 
 Rudolf Bultmann’s theory of composition assumed three principal 
 sources —a Sign Source, a Revelatory Discourse Source, and a Passion 
 and Resurrection Source — that were woven together by a creative evan- 
 gelist who had previously been a Gnostic and follower of John the Bap- 
 tist. After this evangelist’s work became disordered, a final ecclesiasti- 
 cal redactor both reordered the material and rendered it theologically 
 orthodox. Bultmann then undertook rearrangement of the present text 
 to reestablish the underlying “original” gospel. See Bultmann, Gospel of 
 John. 
 
 Oscar Cullmann focused on what he regarded as the main theological 
 point of the prologue: “It is expressed in the alternating juxtaposition 
 of the assertions about John the Baptist as the historical ‘beginning’ . . . 
 and about the absolute ‘Beginning’ ” (“The Theological Content of the 
 Prologue to John in Its Present Form,” in The Conversation Continues: 
 Studies in Paul and John in Honor of J. Louis Martyn, ed. Robert Fortna 
 and Beverly Gaventa [ Nashville: Abingdon Press, 1990], 296). Cullmann 
 also observed that the prologue, “closely dependent on Genesis 1, . . . 
 begins exactly like the First Book of Moses” and constitutes a kind of 
 retelling anew of the creation story (ibid., 297). 
 
 “One historical fact is lucidly clear: Jesus of Nazareth was sentenced by 
 a Roman prefect to be crucified on the political charge that he claimed to 
 be ‘the King of the Jews.’ On this Christian, Jewish, and Roman sources 
 agree” (Brown, John, 29A:792). 
 
 Rudolf Bultmann first identified the words “witness” and “testimony” 
 employed in the portrayal of John the Baptist as legal terms (Gospel of 
 John, 50-51 n. 5). See also ibid., 86. Theo Preiss noted the gospel’s juridi- 
 cal aspect (“La justification dans la pensee johnaique,” in Hommage de 
 Reconnaissance K. Barth |Neuchatel, 1946]). And then Charles Masson 
 detected the fact that John uses juridical terms repeatedly where the 
 other gospels employ the language of evangelizing, announcement, and 
 preaching. Masson suggested that the difference arose from a difference 
 in the Church’s situation (“Le Temoignange de Jean,” Revue de Theologie 
 et de Philosophie 28 [1950]: 120-27). In its earliest days, the Church ad- 
 dressed an audience who had not heard of Jesus, and missionary preach- 
 ing was in order. Later the Church found itself addressing people who 
 had heard the message but challenged it. Proclamation was no longer 
 sufficient. Defense — testimony and substantiating witnesses — became 
 necessary as well. John was written in this period and, Masson argued, 
 took up the vocabulary of trial from the testing that the story was under- 
 going in the life of the Church. 
 
 Raymond Brown notes that the verb martyrein, “to bear witness” or 
 
 NOTES TO CHAPTER 18 235 
 
“testify,” occurs thirty-three times in the Fourth Gospel as compared to 
 a total of two uses in the other three, “a contrast that indicates the extent 
 to which the legal and trial atmosphere dominates Johannine thought” 
 (Epistles of John, 167). 
 
 7 On my own layered approach to reading biblical texts, see chapter 1, 
 note I. 
 
 8 In discussion of the texts of the Hebrew Bible, I referred to “narrator” 
 and “writer.” See chapter 6, notes 6 and 9. My approach is similar when 
 I speak of a “John” and refer to him as the “author” or “writer.” 
 
 Chapters 20 and 21 may be read as two conclusions to the Fourth Gos- 
 pel and as the product of two hands. In addition, throughout the gospel 
 there are differences in style, difficulties in sequence, repetitions, and 
 seeming dislocations. Biblical scholars have been led thereby to inves- 
 tigate possible underlying sources and may conclude that there were 
 many composers or that there was one composer or final editor. They 
 may also conclude, after the fashion of Bultmann, that an original text 
 for the gospel somehow fell out of order and that the present text re- 
 quires rearranging in order to establish an underlying original. 
 
 Brown says that “we can reasonably assume that this form of the Gos- 
 pel made sense to the one who had the final responsibility for the Gos- 
 pel’s appearance” (Brown, John, 29:xxvii). I proceed on that assump- 
 tion and another: “Long continuance has endowed the book as it stands 
 with a certain unchallengeable integrity” (Kermode, “John,” in Alter 
 and Kermode, Literary Guide to the Bible, 441). 
 
 9 In John Berger’s story, “The Three Lives of Lucie Cabrol,” Lucie Cab- 
 rol is murdered at the age of sixty-seven. She returns to speak with her 
 sometime lover, Jean, the narrator, and begins to recount to him her life, 
 beginning with her birth: “‘ 
 I said. ‘If I told you all that I know it would take sixty-seven years 
 
 (“The Three Lives of Lucie Cabrol,” in Pig Earth [New York: Pantheon, 
 1979], 173). 
 10 The authoritative manuscripts and interpreters divide on whether John 
 
 You know everything about your life now, 
 
 299 
 
 21:30 should read “these are written so that you may come to believe” 
 or “these are written so that you may keep believing.” This distinction is 
 thought to reflect a distinction in intended primary audience, either non- 
 believers or already believing Christians. This may be a distinction with- 
 out a difference. I am unconvinced that two such audiences would en- 
 tail two different messages. I should think that the same story would be 
 properly and honestly told either way, for both the engendering and the 
 sustenance of belief. The fact that ancient, authoritative sources yield 
 both possibilities may reflect a judgment that the message would be, 
 should be the same. Either way the question of how to tell it is com- 
 
 236 NOTES TO CHAPTER 18 
 
plex and pressing. In the text, I approach the issue as one of engendering 
 belief. 
 
 Karl Mannheim, /deology and Utopia (New York: Harcourt, Brace and 
 World, 1936), 36. 
 
 Thomas Kuhn, The Structure of Scientific Revolutions, 2d ed. (Chicago: 
 University of Chicago Press, 1970), 56. 
 
 The author would have had examples to consult, including Hellenic 
 as well as Jewish ways of writing about mythological or real people 
 and also perhaps one or more earlier Christian gospels. See Frank Ker- 
 mode, introduction to the New Testament, in Alter and Kermode, Liter- 
 ary Guide to the Bible, 375, 376; Charles Talbert, What Js a Gospel? The 
 Genre of the Canonical Gospels (Philadelphia: Fortress Press, 1977). See 
 generally, D. Moody Smith, John among the Gospels: The Relationship in 
 Twentieth-Century Research (Minneapolis, Minn.: Fortress Press, 1992); 
 John Ashton, Understanding the Fourth Gospel (Clarendon: Oxford Uni- 
 versity Press, 1991). 
 
 The Gospel of John does employ an assortment of writers’ tools, in- 
 cluding poetry, narrative, discourse, and drama; prophecy and history; 
 metaphor, ambiguity, and irony, especially irony; and the development 
 of themes of contrasting pairs (light /darkness, day/night, being /be- 
 coming, revealing /hiding, life /death, Word / world). 
 
 Some repetitions, like chronological and geographic inconsistencies, 
 appear to be nonpurposive. If they are, then the text may be said to suffer 
 lapses of economy and discipline. As Brown notes, what is said and hap- 
 pens in 6:35—50, when Jesus refers to his revelation as the bread of life, is 
 virtually repeated in 6:51-58, when he presents his body as the bread of 
 life (Brown, John, 29:xxv). In the context of the last supper, Peter asks 
 Jesus where he is going (13:36), but later Jesus says no one has asked 
 him where he is going (16:5). It is said in chapter 7:3-5 that Jesus had 
 worked no miracles in Judea, but Jerusalem is in Judea and according to 
 2:23 and 5:1—9 he had worked miracles there. Scholars have taken such 
 repetitions and inconsistencies as occasion for apology, amendment, and 
 rewriting, as well as conjecture about possible underlying sources. 
 
 I think that readers who concede the integrity of the text may more 
 fruitfully take these instances as occasion for instruction. The contradic- 
 tions may be an example. Perhaps the writer found contradiction more 
 adequate than consistency for addressing the transcendent. 
 
 See Brown, John, 29:914. 
 
 Kermode, “John,” 455. Just so, John 1:15 releases Genesis 1:15 into the 
 prologue. (The prologue’s “In the beginning. . . . All things came into 
 being. . . . The light shines in the darkness” track the Bible’s opening, 
 “In the beginning God created the heavens and the earth. . .. Then God 
 
 NOTES TO CHAPTER 18 237 
 
20 
 
 21 
 
 22 
 23 
 24 
 
 — 
 
 said, “Let there be light’; . . . and God separated the light from the dark- 
 ness.”) 
 
 Aileen Guilding even proposes that the motifs of the material that the 
 Gospel of John associates with each festival are related to specific motifs 
 of the synagogue readings for the season (The Fourth Gospel and Jew- 
 ish Worship (Clarendon: Oxford University Press, 1956]). See generally 
 Brown, John, 29:cxxxviii-—cxliv. 
 
 Chapter 13 opens with statement of Jesus’ knowledge of the coming 
 end and his washing of the disciples’ feet. The foot washing prefigures 
 the sacrificially cleansing events about to take place and lays down an 
 interpretive ground for later use (“You do not know now what I am 
 doing, but later you will understand” [13:7]). Brown observes: “The 
 footwashing . . . dramatically acts out the significance of Jesus’ death — 
 it is a death that cleanses the disciples and gives them a heritage with 
 him. The majestic Last Discourse reassures the disciples that Jesus’ 
 death is not the end” ( John, 29A:542). 
 
 The Last Discourse is also aimed at subsequent members of the com- 
 munity of faith and is undoubtedly meant to help them understand the 
 meaning of Jesus’ trial for their own, later testing. 
 
 He also dines with Lazarus, whom “the chief priests planned to put. . . 
 to death as well” (12:10), and with Judas, “who was about to betray him” 
 (12:4) (ee also 6:71). 
 
 See also 8:20 (a confrontation ends: “No one arrested him, because his 
 hour had not yet come”). 
 
 Jesus’ radical demonstration in the temple (2:13) is provocative. Al- 
 though it is not expressly linked to the trial series of confrontations, it 
 may signal the onset of the conflict between Jesus and the Jews. See Alan 
 Watson, The Trial of Jesus (Athens: University of Georgia Press, 1995), 
 44-45. 
 
 A. E. Harvey, Jesus on Trial (Atlanta, Ga.: John Knox Press, 1977), 50. 
 Ibid., 127. 
 
 Brueggemann, Theology of the Old Testament, xvi passim. 
 
 19. The Gospel Trial: A Divine Lawsuit 
 
 Brown explains “that John presents the Paraclete as the Holy Spirit in a 
 special role, namely, as the personal presence of Jesus in the Christian 
 while Jesus is with the Father. This means, first of all, that the Johan- 
 nine picture of the Paraclete is not inconsistent with what is said in the 
 Gospel itself and in the other NT books about the Holy Spirit. . . . The 
 peculiarity of the Johannine portrait of the Paraclete /Spirit, and this is 
 our second point, centers around the resemblance of the Spirit to Jesus. 
 
 238 NOTES TO CHAPTER I9 
 
2 
 
 wa > WwW 
 
 n 
 
 —“ 
 
 oo 
 
 9 
 
 Virtually everything that has been said about the Paraclete has been said 
 elsewhere in the Gospel about Jesus” ( John, 29A:1139—40). 
 
 Brown has a compact but comprehensive appendix on the background 
 and Johannine meaning of the Paraclete (ibid., 1135-43). Compare 
 Brown, Epistles of John, 215-17. See also Ashton, Understanding the 
 Fourth Gospel, 420-25; D. Moody Smith, The Theology of the Gospel of 
 John (Cambridge: Cambridge University Press, 1995), 139-44; Stephen 
 Smalley, “The Paraclete”: Pneumatology in the Johannine Gospel and 
 Apocalypse, in Exploring the Gospel of John, ed. R. Alan Culpepper and 
 C. Clifton Black (Louisville, Ky.: Westminster John Knox, 1996), 289. 
 On “abiding with (or in)” see Brown, John, 29:510-12. See also Brown, 
 John, 29A:711-17. The Paraclete (the Spirit, the presence of Jesus) em- 
 powers believers: “Very truly, I tell you, the one who believes in me will 
 also do the works that I do and, in fact, will do greater works than these, 
 because I am going to the Father” (14:12). 
 
 On a related trial-like advocate in Job, see chapter 2, note 1. 
 
 SES 222 ID OMIA Oe 
 
 Brown, John, 29A:712. Of course, there is no scene in the gospel in which 
 we see this take place. The point arises from what Jesus says will happen 
 after his death. See 14:26, 16:13—-15. As I shall suggest, the text’s replay 
 of the trial is the written embodiment of the Paraclete’s education of the 
 disciples. 
 
 See Brown, John, 29A:689, 699; Ashton, Understanding the Fourth Gos- 
 pel, 526-27. 
 
 “The Paraclete will focus on the expression of disbelief that culminated 
 in putting Jesus to death, but those who are guilty are a much wider 
 group than the participants in the historical trial of Jesus. Those par- 
 ticipants are only the forebears of men in every generation who will be 
 hostile to Jesus” (Brown, John, 29A:712). 
 
 These processes may actually resemble the one in Jerusalem to which 
 Jesus was subjected; the last chapter makes reference to the kind of death 
 Peter would suffer, and it is very like the crucifixion of Jesus (21:18—19). 
 The Paraclete is “a prosecuting attorney” (Wayne A. Meeks, “The Eth- 
 ics of the Fourth Gospel,” in Culpepper and Black, Exploring the Gos- 
 pel of John, 317, 323). See Brown, John, 29A:710-17, 1135-43; Ashton, 
 Understanding the Fourth Gospel, 526. 
 
 Statements of the prosecuting role can be read as simple repetitions 
 in other terms of the Paraclete’s role as a posttrial commentator and as 
 the source of the disciples’ testimony in the ongoing trials. That this is 
 an additional, new role seems to me clear from the text. The Paraclete 
 neither testifies on Jesus’ behalf in the Jerusalem trial nor plays the role 
 of prosecutor in the ongoing trials of the faithful who are defendants. 
 Brown, John, 29:45. 
 
 NOTES TO CHAPTER 19 239 
 
10 The crucifixion scene of the Isenheim altarpiece depicts John pointing 
 with a long, bony finger to Jesus on the cross. It is theologically truthful 
 if chronologically incongruous. It may be that Brown intends his com- 
 ment in the theological sense. 
 
 ll 3:36—4:1. Jesus cites the Baptist’s testimony at one point later (5:32—36) 
 and followers of Jesus remember him once (10:41), but he has no textual 
 function in the legal process that begins in chapter 5 and culminates in 
 chapter 19. 
 
 A. E. Harvey does not cite either Brown or Masson, but he, too, em- 
 phasizes the trial-like character of the gospel. In fact he sees the gospel 
 as actually reflecting Jewish legal procedure and as based upon a pattern 
 of two parties in dispute in a Jewish trial (Harvey, Jesus on Trial, 15). 
 (He does not devote attention to Roman law.) He finds a series of legal 
 encounters between Jesus and “Jewish lawyers” which forms a drawn- 
 out, specifically legal proceeding in which “the normal procedures for 
 pronouncing the verdict and carrying out the sentence were frustrated 
 again and again” until the matter could finally be brought to a conclu- 
 sion in Jerusalem (ibid., 127). 
 
 Harvey would have the whole gospel read as a specifically legal, two- 
 party process (Jesus vs. Jews). However, he does not find the formal 
 complaint initiated until chapter 5 of the gospel, with the healing of the 
 cripple. His work is helpful, and I shall return to parts of it. However, I 
 do not find it necessary to read John asa reflection of a specific legal pro- 
 ceeding, and I believe that it may misdirect interpreters to take the gos- 
 pel as a kind of appellate brief challenging readers “to reach their own 
 verdict” (ibid., 17) or to find “that the Jewish judges who condemned 
 [ Jesus] were wrong” (ibid., 103). 
 
 John Ashton’s view of the text is closer to my own: “Jesus’ public 
 career takes the form of a prolonged and bitter dispute with the Jews. 
 From one perspective this may be seen as a ¢ria/—a trial whose even- 
 tual outcome, never really in doubt, is the sentence of crucifixion passed 
 by Pilate. But the trial motif in the Fourth Gospel is not just another 
 theological theme, distinct and separable from that of judgement. It is 
 judgement in action, judgement as story or drama. . . . Judgement . . . is 
 embodied in a narrative” (Understanding the Fourth Gospel, 226). 
 
 _ 
 i) 
 
 Perhaps the legal descriptions of the Baptist and his encounter with the 
 authorities are meant to have no independent significance. They may 
 simply set the scene for the ensuing trial of Jesus. Bultmann says that the 
 initial confrontation between John the Baptist and the Jews is “the pre- 
 lude to the struggle which runs through the whole of the life of Jesus: it 
 is a struggle between the Christian faith and the world, represented by 
 Judaism, a struggle which is continually portrayed as a trial” (Gospel of 
 John, 86). 
 
 240 NOTES TO CHAPTER I9 
 
13. Ibid., 553 n. 5. See also Harvey, Jesus on Trial, 15-16, 126-27. 
 14 On the riv see Ball, Word and the Law, 10-1, 117, 188—90 nn. 10-17. 
 15 Opening the prologue to include him is the textual equivalent to inter- 
 
 17 
 
 rupting the heavenly assembly to admit a prophet. 
 
 The Baptist’s second interruption of the text is grammatically note- 
 worthy: “John testified and cried out: “This is he of whom I said: “The 
 one who comes after me ranks ahead of me, for he was before me”’” 
 (1:15). The quote within a quote is repeated in 1:30; the text never 
 presents him saying what he said he said. This may be a way of calling 
 attention to the Baptist—his function in the text—as only a message 
 bearer. 
 
 The gospel quotes from Isaiah four times (1:23, 6:45, 12:38, 40) or argu- 
 ably five (12:13). Ashton observes that the Isaiah verses are “drawn from 
 the common stock of the gospel tradition” (Understanding the Fourth 
 Gospel, 543). However, as is true of other material from the common 
 stock, it is important to discern how John employs it. 
 
 Ashton, Understanding the Fourth Gospel, 220-26; Brown, John, 29: 
 CXVil, 134, 219, 345. 
 
 The influential source for my understanding of Ariss is Karl Barth, 
 whose theology early and late flowed from the crisis: “If I have a sys- 
 tem, it is limited to a recognition of what Kierkegaard called the ‘infinite 
 qualitative distinction’ between time and eternity, and to my regarding 
 this as possessing negative as well as positive significance: ‘God is in 
 heaven, and thou art on earth.’ The relation between such a God and 
 such a man, and the relation between such a man and such a God, is for 
 me the theme of the Bible and the essence of philosophy. Philosophy 
 names this KRISIS of human perception — the Prime Cause; the Bible be- 
 holds at the same cross-roads—the figure of Jesus Christ” (The Epistle 
 to the Romans, 6th ed., trans. Edwyn Hoskyns [London: Oxford Univer- 
 sity Press, 1933], 10). 
 
 This is the Cana to Cana unit. In a first sign performed at Cana, water 
 is changed to wine, and “his disciples believed in him” (2:11). A Pass- 
 over visit to Jerusalem follows. During it Jesus drives merchants from 
 the temple and performs signs, “and many believed in his name” (2:23). 
 
 Chapter 3, too, is permeated with the language and setting of law. It 
 features the taking and testing of testimony. In this chapter Nicodemus 
 enters the text and John the Baptist departs it. Nicodemus is a Phari- 
 see well if tentatively disposed toward Jesus, whom he seeks out in the 
 night. The encounter takes juridical character when Jesus describes him- 
 self as testifying (3:11). Nicodemus fades from the scene as Jesus attests 
 that he is the Son of God (3:11-18), and the discourse revisits the dy- 
 namic setting of the prologue: “this is the Ariszs, that the light has come 
 into the world, and people loved darkness rather than light” (3:18-19). 
 
 NOTES TO CHAPTER IQ 241 
 
In the second episode of chapter 3, John the Baptist makes his last ap- 
 pearance. He repeats his testimony that he has been sent ahead of the 
 Messiah and that he must decrease as the Messiah increases (3:25—30). 
 With his testimony concluded and corroborated and with Jesus’ own 
 testimony having begun, the Baptist is dismissed from the text. Another 
 section of discourse follows. It revives the crisis themes and introduces 
 yet another legal term: certify or confirm or set one’s seal to. “Whoever 
 accepts Jesus’ testimony has certified this, that God is true” (3:33). 
 
 The circle of certifying believers expands twice more in chapter 4 to 
 include, surprisingly, Samaritans and a government official. In the beau- 
 tifully worked story of Jesus and a Samaritan woman, “many Samari- 
 tans” become believers and “know that this is truly the Savior of the 
 world” (4:7—42). In the concluding story, Jesus returns to Cana and in 
 a second sign there heals the son of a royal official who then becomes 
 a believer “along with his whole household” (4:46—54). A welcome by 
 Galileans is added toward the end of the section as a grace note to high- 
 light the accumulation of affirmation (4:45). 
 
 19 The pointed question of 2:18—21 could be taken as an expression of 
 opposition but certainly does not have to be so read. Narrated, active 
 opposition does not start until chapter 5, when the trial of Jesus is 
 set in motion. Until then, with the qualified exception of the meeting 
 with Nicodemus, all the episodes feature belief. And even Nicodemus is 
 present to prompt an examination of believing. 
 
 20 The believing that serves as corroborating evidence in the affirmative 
 part of the case continues to appear from time to time in chapters 5—19. 
 See, e.g., 6:69 (the twelve), 7:31 and 8:30 (many), and 12:42 (authori- 
 ties). It is concentrated in the text around the raising of Lazarus toward 
 the close of Jesus’ public ministry. First John the Baptist is remembered, 
 and many believe (10:42). Then before Lazarus is raised, in terms that re- 
 call the prologue and the Baptist’s testimony, Martha, the sister of Laza- 
 rus, responds to Jesus: “I believe that you are the Messiah, the Son of 
 God, the one coming into the world” (11:27). After the raising of Laza- 
 rus, “many of the Jews” believe (11:45). 
 
 The “belief” attributed to crowds in chapters 5-19 may even perform 
 a negative function. For example, “many of the Jews” believe in Jesus 
 after the raising of Lazarus, “but some of them went to the Pharisees 
 and told them what he had done” (11: 45—46), and the belief is a prompt 
 to the authorities to act: “If we let him go on like this, everyone will be- 
 lieve in him, and the Romans will come and destroy both our holy place 
 and our nation” (11:48). 
 
 Similarly, belief among the authorities bears negative connotations: 
 “Many, even of the authorities, believed in him. But because of the Phar- 
 isees they did not confess it, for fear that they would be put out of the 
 
 242 NOTES TO CHAPTER I9 
 
2 
 
 — 
 
 22 
 
 23 
 
 synagogue; for they loved human glory more than the glory that comes 
 from God” (12: 42-43). 
 
 Bultmann says that “the ‘Jews’ are under the illusion that they are the 
 judges, whereas in fact they are the accused before the forum of God” 
 (Gospel of John, 86). His later comments on the account of one discus- 
 sion between Jesus and the people of Jerusalem (7:28ff.) are character- 
 istic of his reading of John as a whole: “The historical scenery is only 
 a disguise for the real event, which is the conflict between the world 
 and the Revealer before the tribunal of God” (ibid., 297). I am wary 
 of embracing Bultmann’s description because the trial—like history in 
 the Gospel—is not a question of “illusion” and “disguise.” It is ironic, 
 and there is all the difference in the world between irony and illusion or 
 put-on. 
 
 For a summary of scholarship on irony in the gospel, see, e.g., R. Alan 
 Culpepper, “Reading Johannine Irony,” in Culpepper and Black, Ex- 
 ploring the Gospel of John, 193. See also George Macrae, “Theology and 
 Irony in the Fourth Gospel,” in The Gospel of John as Literature, ed. Mark 
 Stibbe (Leiden: Brill, 1993), 103-13. Stibbe’s selection of material for this 
 small, interesting book demonstrates that literary approaches to John 
 are not new, as has been commonly assumed, and that such approaches 
 have been plural as well as long-standing. 
 
 Brown notes that the Gospel of John makes two different kinds of 
 statements about Jesus and judging ( John, 29:345). According to some 
 passages Jesus did not come to judge (3:17, 12:47). The idea in such 
 verses is that he is not the apocalyptic judge of the last day. Instead, his 
 presence causes people to judge themselves. 
 
 According to other statements, he did come to judge (9:39, 4:22).This 
 is not a contradiction but an expansion of the first idea. So in 8:15—16 
 both kinds of statements are made: “You pass judgment according to 
 human standards, but I pass judgment on no one. Yet even if I do judge, 
 that judgment of mine is valid because I am not alone—I have at my side 
 the One who sent me [the Father].” The second sentence means, Brown 
 suggests, that the judgment Jesus’ presence provokes will be accepted 
 by the Father. That is, the self-judgment has an eternal dimension. 
 Bultmann, Gospel of John, 86. See also on irony Macrae, “Theology and 
 Irony in the Fourth Gospel,” 103. 
 
 John Ashton points out that, at the time of Jesus, Judaism was composed 
 of a rich variety of sects and philosophies and that Johannine Chris- 
 tians may have been a dissenting group among them (Understanding 
 the Fourth Gospel, 156, 159). He suggests that the hostility to “the Jews” 
 in the gospel had a contemporaneous, external referent: “the powerful 
 party” that assumed authority and gave founding shape to what we now 
 know as Judaism succeeded in expelling the Johannine community from 
 
 NOTES TO CHAPTER IQ 243 
 
the synagogue (ibid., 152, 158). In this view, the acrimony in the gospel is 
 then to be read as reflecting religious antagonism present at the time the 
 text was composed. It would have been “the type of family row in which 
 the participants face one another across the room of a house which all 
 have shared and all call home” (ibid., 151; see generally 131-59). 
 
 24 Forsummary, discussion, and response to the issue of anti-Semitism and 
 the Gospel of John, see D. Moody Smith, “Judaism and the Gospel of 
 John,” in Jews and Christians: Exploring the Past, Present, and Future, ed. 
 James Charlesworth (New York: Crossroad, 1990), 76; Smith, Theology 
 of the Gospel of John, 169-73; Smith, “John,” in Early Christian Thought 
 in Its Jewish Context, ed. Barclay and Sweet (Cambridge: Cambridge 
 University Press, 1996). 
 
 In the text, “the Jews” and Jews who are followers of Jesus are linked 
 not only negatively (Jews, disciples, and Romans compose the world 
 who judge Jesus) but also positively: The story of the gospel cannot be 
 told except in reliance upon the language of Jewish liturgy and stories. 
 There is a further issue here that has to do with a certain kind of scholar- 
 ship that focuses on a hypothesized reflection of synagogue-church hos- 
 tility. See chapter 22, note 15; chapter 23, note 2. 
 
 25 The world is all “creation capable of response” (Brown, John, 29:508, 
 Io). 
 
 26 See 1:35-51. There is in John no list of the Twelve Disciples of the other 
 gospels, and he does not say that there are twelve of them. 
 
 27 The reader has been prepared to reach this unstated conclusion by chap- 
 ter 3: Those “who do not believe are condemned already” (3:18), and 
 “whoever believes in the Son has eternal life; whoever disobeys the Son 
 will not see life, but must endure God’s wrath” (3:36). Karl Barth ob- 
 served that the “wrath of God is the righteousness of God—apart from 
 and without Christ” (Epistle to the Romans, 43). To judge Jesus is an act 
 of separation that is self-condemning. It is to remain apart from him and 
 therefore to continue in existing darkness. It is to refuse to be liberated. 
 
 On the issue of Jesus and judging —krinein, which can mean either 
 “judge” or “condemn” —see Brown, John, 29:345. The gospel at vari- 
 ous points says that Jesus did not come to judge /condemn and at others 
 that he did. Brown observes that “the statement that Jesus did not come 
 to condemn does not exclude the very real judgment that Jesus pro- 
 vokes. . . . The idea . . . seems to be that during his ministry Jesus is 
 no apocalyptic judge like the one expected at the end of time; yet his 
 presence does cause men to judge themselves” (ibid., 345). 
 
 244 NOTES TO CHAPTER I9 
 
_ 
 
 Ww 
 
 _ 
 
 i) 
 
 20. A Reversal and Appeal 
 
 In proving Jesus to be right and the world wrong (16:8—11), the Para- 
 clete prosecutes the world. But this is also a saving action that is to the 
 world’s advantage. If the world were right, it would have no hope. 
 Brown comments on the drama of the moment: “Throughout the Gos- 
 pel . . . on the stage of 1st-century Palestine, [the author] has in mind 
 an audience seated in a darkened theater of the future, silently viewing 
 what Jesus was saying and doing. . . . now, as the curtain is about to fall 
 on the stage drama, the lights in the theater are suddenly turned on. Jesus 
 shifts his attention from the disciples on stage to the audience . . . and 
 makes clear that his ultimate concern is for them” ( John, 29A:1049). 
 
 I would describe the circumstance as a courtroom rather than a the- 
 
 ater —to the extent that there is a difference. The point is that the text 
 may here be making appeal to the reader as either judge /jury or as play- 
 goer. 
 Macrae observes that “where the distance of tragedy is meant to bring 
 about catharsis without actual terror, in the Fourth Gospel this distance 
 has the effect of involving the spectator in the challenge of faith” (“The- 
 ology and Irony in the Fourth Gospel,” 108). 
 
 21. The Power of the Word: Two Women 
 
 John the Baptist is sent as a witness to testify “so that all might believe 
 through him” (John 1:7). He is described as a witness whose testimony 
 produces belief, but the text has little narrative in which his words actu- 
 ally have this direct effect. Just prior to the story of Mary and Martha and 
 the raising of Lazarus, Jesus withdraws to the area across the Jordan that 
 had been the setting for John the Baptist’s activity. The text says: “Many 
 came to [Jesus], and they were saying ‘John performed no sign, but 
 everything that John said about this man was true.’ And many believed 
 in him there” (10:41—42). This interweaving of Jesus’ sign and John’s 
 remembered words captures the complexity of the relation of John and 
 Jesus in the text. John was sent so that all might believe through him, 
 but we do not see much evidence of such belief apart from Jesus. 
 
 Jesus himself arrives, and he, too, speaks “so that they may believe” 
 (11:42, 14:29). 
 In John, she, and not Peter, is primary. The two components essential 
 to the apostolate are having seen the risen Jesus and being sent to pro- 
 claim him. Mary Magdalene not only satisfies both but is the first to do 
 so (Sandra Schneiders, “Women in the Fourth Gospel and the Role of 
 
 NOTES TO CHAPTER 21 245 
 
Women in the Contemporary Church,” in Stibbe, Gospel of John as Lit- 
 erature, 139-41; Brown, Community of the Beloved Disciple, 189-91). See 
 also Gail O’Day, “John,” in Newsom and Ringe, Women’s Bible Com- 
 mentary, 300-302. 
 
 3 See Brown, John, 29:lxxxvii-—cii. 
 
 4 Commentators have noted the theatrical quality of the encounter, and 
 Brown divides it into scenes ( John, 29:166—68). 
 
 5 The Samaritan woman occupies chapter 4. John the Baptist fades out of 
 the text in chapter 3. In his last words he describes himself as a friend of 
 the bridegroom who must decrease as the bridegroom increases. As the 
 awaited bridegroom appears, the groomsman recedes. The next story 
 is that of Jesus and the Samaritan woman who has five husbands. They 
 meet at a well. In the stories of the Hebrew Bible, such meetings of a 
 man and a woman— Moses and Zipporah—lead to marriage. The con- 
 versation between Jesus and the Samaritan woman is scandalous to the 
 disciples. The text gives no indication that they are shocked by sexual 
 innuendo. But see Alan Watson, Jesus and the Jews (Athens: University 
 of Georgia Press, 1995), 29-37. 
 
 Schneiders proposes that Samaritans were an integral part of the Jo- 
 hannine community and that the disciple’s shock is aimed at those tra- 
 ditionalist male Christians who were shocked by the apostolic initiative 
 of women (“Women in the Fourth Gospel,” 133-34). 
 
 Gail O’ Day points out that the Samaritan woman’s reputation for im- 
 morality is not a necessary function of the text: “The text does not say, 
 as most interpreters automatically assume, that the woman has been di- 
 vorced five times but that she had five husbands. There are many possible 
 reasons for the woman’s marital history” (“John,” 296). 
 
 6 Her audience ultimately comes to believe not from the words she bears 
 but from the words Jesus himself addresses to them. This circumstance 
 does not diminish her office or the power of her words. It follows the 
 Johannine formula according to which, prior to the resurrection and for 
 a short period afterward, “the witness of a believing disciple brings a 
 person to Jesus but then the disciple fades away and the prospective 
 believer encounters Jesus himself” (Schneiders, “Women in the Fourth 
 Gospel,” 133). 
 
 22. The Power of the Word: Moses and the Spirit 
 
 — 
 
 I take this point and the following one about Moses’ last discourse from 
 Brown, John, 29:491-93. 
 
 2 Deuteronomy 29:2-33:29 includes a variety of material placed at the 
 end of Moses’ life. Chapters 29-30 are an address to Israel in Moab. 
 
 246 NOTES TO CHAPTER 22 
 
Chapter 31 contains words of Moses to Israel, the commissioning of 
 Joshua, the institution of a covenant ceremony, and Moses writing the 
 words of the law in a book. Chapter 32 is a song of Moses (32:1—43) 
 followed by concluding comments of his (32:44—47) and then words 
 addressed to Moses by God (32:48-—52). Chapter 33 is a blessing of the 
 tribes of Israel by Moses. For present purposes, I include in Moses’ final 
 discourse those portions of 29:2—32:47 that the text identifies as spoken 
 to Israel gathered in Moab near his death. 
 
 3 See Ashton, Understanding the Fourth Gospel, 456-59. 
 
 4 Compare my discussion of the writing of the decalogue in chapter 1. 
 
 The accessibility and life-giving power of the law when it soaks 
 through a person is emphasized when Moses says that the law “is not 
 too hard for you, nor . . . too far away” and that “the word is very near 
 to you; it is in your mouth and in your heart for you to observe” (Deut. 
 30:11, 14). 
 
 The connection between writing and the heart is made earlier. After 
 Moses’ injunction “Keep these words that I am commanding you today 
 in your heart,” he adds: “Recite them when you are at home and when 
 you are away. .. . Bind them as a sign on your hand, fix them as an em- 
 blem on your forehead, and write them on the doorposts of your house 
 and on your gates” (Deut. 6:6—9; see also 11:18, 32:46). 
 
 5 Ashton, Understanding the Fourth Gospel, 420. 
 
 6 See also 14:18—26, 15:26—27, 16:12—15, 6:63. It may be that the Spirit and 
 the commandments /words of Jesus in the heart help explain the mean- 
 ing of 7:37-39. 
 
 7 Jeremiah’s vision of the restoration and a new covenant includes a re- 
 lated image: “I will put my law within them, and I will write it on their 
 hearts” (Jer. 31:33)- 
 
 The chapter 12 poem makes no mention of the Spirit. I have assumed 
 that it is properly read together in this regard with the cited portions of 
 the last discourse in chapter 14. The omission of the Spirit from chap- 
 ter 12 can be explained as a matter of its function and placement in the 
 text. It looks back to the public ministry when “as yet there was no 
 Spirit, because Jesus was not yet glorified” (7:39). The last discourse 
 looks ahead to the trial and glorification. 
 
 8 Moses writes his words to serve as a witness against the people. There is 
 no difference in function between the words of the law serving as a wit- 
 ness and, as the poem in John puts it, the word of Jesus serving as judge 
 (12:48). On an overlap between witness and judge, see Harvey, Jesus on 
 Trial, 46-47. 
 
 9 The only other writing is that ordered by Pilate: “Jesus of Nazareth, the 
 King of the Jews” (19:19). 
 
 10 Ashton notes that to keep Jesus’ words, the disciples “must literally keep 
 
 NOTES TO CHAPTER 22 247 
 
a record of his words, which means in practice keeping a copy of the Gos- 
 pel. The actual composition of the Gospel is part, and an essential part at 
 that, of the carrying out of Jesus’ last commission” (Understanding the 
 Fourth Gospel, 459). 
 
 ll Biblical scholars speculate about the origins of chapter 21, its author, and 
 how it fits in the text. I believe that the text has to be taken seriously as 
 it is. The question for me is what its sense is, not how it got there and by 
 whose hand. 
 
 12 On the “author” and the various “Johns,” see chapter 18, note 3. See also 
 Brown, John, 29:xcii—xcviii. The beloved disciple is the first to believe 
 in the scene at the tomb and the first to identify the risen Jesus in the 
 concluding scene on the beach at daybreak (21:7). 
 
 13 Ashton, Understanding the Fourth Gospel, 522, emphasis omitted. Words 
 and works are parallel terms in 14:10-12. “The words that I say to you 
 I do not speak on my own; but the Father who dwells in me does his 
 works” (14:10). Then verse 12 adds: “The one who believes in me will 
 also do the works that I do and, in fact, will do greater works than these, 
 because I am going to the Father.” See Ashton, Understanding the Fourth 
 Gospel, 521-22; Brown, John, 29A:633-34. 
 
 14 The authority lies with the words, not the author. See Ashton, Under- 
 standing the Fourth Gospel, 459. 
 
 15 A major theme in modern academic discussion of the gospel has been 
 the situation in which it was written. The construction of that situation 
 as one of bitter conflict between synagogue and church extends the tex- 
 tual conflict between “the Jews” and Jesus into extratextual history. This 
 move can — but does not necessarily — give the conflict an unwarranted, 
 exaggerated character, an unwarranted reality as a conflict between Jews 
 and Christians, and an unwarranted textual location to supposed, subse- 
 quent, extratextual events. It can—but does not necessarily — thereby 
 lead to pernicious interpretations that are basically unsupported by the 
 text and that divert attention from other interpretations that the text 
 does support. 
 
 Severino Pancaro’s well-regarded The Law in the Fourth Gospel says 
 about an issue absolutely essential to his thesis: “It is the controversy be- 
 tween the Church and the Synagogue which is at the root of the meaning 
 John gives the term nomos [law]” (514). The “controversy” in issue he 
 confidently identifies as “the battle ‘normative’ Judaism waged against 
 Jewish-Christians towards the end of the first century” (ibid., 511). That 
 conflict is then read as the subject of the gospel: “John has reduced the 
 opposition between the Church and the Synagogue (Christianity and 
 Judaism) to a confrontation between the Law and Jesus” (ibid., 8). And 
 in that confrontation, the Law condemns the Jews rather than Jesus. It 
 condemns the Jews because they pervert justice and procure the con- 
 
 248 NOTES TO CHAPTER 22 
 
demnation of Jesus on grounds that have nothing to do with the law 
 (ibid., 363). 
 
 One textual difficulty with this notion is that Jesus dies “kata ton no- 
 mon’ (according to the law). See Law in the Fourth Gospel, 363. Pancaro 
 resolves this difficulty with the extratextual maneuver of reading subse- 
 quent developments into the text. He says that there must be two differ- 
 ent understandings of law in John: “The Jews” in the text must hold the 
 understanding of later Judaism, and John must mean by nomos what the 
 later Church meant. The two are not coincident. Jesus died according 
 to “law” as later Christianity but not Judaism understood the term. See 
 Law in the Fourth Gospel, 510. 
 
 This maneuver requires maneuvering the text. For example, it entails 
 reading Pilate out of the story. He becomes “extraneous to the whole 
 religious drama” (ibid., 315). He is merely “a bystander” who “acts as a 
 dramatic foil to the Jews” (ibid., 324). To the degree that he is present, he 
 is “less guilty than” they (ibid., 323). To the contrary, as I have already 
 noted in the text, the Apostle’s Creed holds that Jesus “suffered under 
 Pontius Pilate” and does not charge the Jews. And it enters into no judg- 
 ment about comparative guilt. 
 
 And then Pancaro engages in a scandalous wrenching of the text. In 
 his reckoning, the lawsuit against the world becomes a lawsuit against 
 “the Jews” and, potentially, a lawsuit against the Jews: “We have men- 
 tioned that some authors see the end of the Jewish nation as the ‘people 
 of God’ in the outcry: “We have no king but Caesar’. By rejecting Jesus, 
 they abdicate their rights as the ‘chosen people’. This is no doubt what 
 John wished to show, but we must go further. It was the Law which made 
 of the Jews the people of God. The condemnation of Jesus is contrary 
 to the Law since it was meant to lead to him. The rejection of Jesus co- 
 incides with the ‘perversion’, abuse and rejection of the Law and, since 
 the Law is the ‘Exzstenz-grundlage’ of Irael, the Jews cease thereby to be 
 the ‘people of God’ ” (ibid., 318). 
 
 As should be evident from the account I have given, the text of the 
 gospel does not permit me to interpret John as Pancaro does. Pancaro’s 
 book is an abridgement of his doctoral dissertation accepted by the Uni- 
 versity of Miinster in 1972. It troubles me that a theological faculty, espe- 
 cially a German one, in the late ’60s—early ’70s, would not have guided 
 a graduate student away from such an extravagant, inflammatory inter- 
 pretation. After the Holocaust, why wouldn’t any Christian theologians 
 anywhere regard such a use of the text as requiring extraordinary ex- 
 amination of conscience, extraordinary substantiation in the text, and 
 extraordinary grounds for rejecting conflicting interpretations better or 
 equally grounded in the text? 
 
 Robert Jenson notes “that the present existence of Judaism is a vital 
 
 NOTES TO CHAPTER 22 249 
 
theological topic” for the theology he is developing (Systematic The- 
 ology, 82 n. §7). It is a vital theological topic for the modern Church as a 
 whole. If scholars of John are to have a positive role in developing this 
 topic, they would do well to take note of Moody Smith’s reading of the 
 Gospel: “Jesus Christ belongs, and is intelligible, only in his Jewish and 
 biblical context, while at the same time an adequate assessment of who 
 he is sheds a radically new light on that context, causes it to be viewed 
 differently, but does not destroy or negate it. It is in the interest of the 
 evangelist not to destroy or negate Judaism, but to remain in dialogue 
 with it. . . . John holds traditional Jewish messianism and his own dis- 
 tinctive christology in creative tension” (“John,” in Barclay and Sweet, 
 Early Christian Thought in Its Jewish Context, 109). 
 
 23. The Power of the Word: Disbelief 
 
 1 On the “impossible possibility” of disbelief, see Karl Barth, Doctrine of 
 Reconciliation, vol. 4 of Church Dogmatics, pt. 1, 408-10. 
 
 2 My point is drawn from the texts and not from extratextual reference to 
 a Johannine community and its historical situation. If extratextual, his- 
 torical evidence of disbelief is needed, plenty of it has accumulated in 
 the Church in the centuries since the gospel was written. Also the texts 
 themselves bear abundant witness to the possibility of the impossible. 
 
 Brown is among the scholars who have devoted attention to construc- 
 tion of the situation in which the gospel was written. I noted in part 1 
 that I have been helpfully influenced by the useful mode of modern bib- 
 lical scholarship that attempts to look through the texts to what can be 
 constructed of their original contexts. I have also observed that this ap- 
 proach can be diversionary. 
 
 In scholarship on John, J. Louis Martyn is famous for his History 
 and Theology in the Fourth Gospel, 2d ed. (Nashville, Tenn.: Abingdon, 
 1978), in which he reads the gospel as dramatizing events that took place 
 in its immediate historical circumstance. Such a reading depends upon 
 distinguishing bits of the text of John that can be said to be traditional 
 (material the author received) from what can be said to have been added 
 by the author (material from events in the author’s present). The gospel 
 is then to be seen as a play whose actors mount “a two-level stage so that 
 each is actually a pair of actors playing two parts simultaneously,” a part 
 in the life of Jesus and a part from the author’s community (ibid., 37). 
 
 Martyn’s book displays great learning and ingenuity and has had a 
 profound impact among scholars of John. I have two reservations about 
 the book’s approach or, really, about the general approach that it ex- 
 emplifies and that has dominated the discipline of biblical studies in my 
 
 250 NOTES TO CHAPTER 23 
 
Ww 
 
 _— 
 
 n wm 
 
 | 
 
 co 
 
 lifetime. First, Martyn says his endeavor enables us to take up tempo- 
 rary residence in the Johannine community and therefore enables John 
 to speak in his own terms (ibid., 18; see also 29-30, 38, 135-37). This is 
 to claim far too little for the obvious role of his own wonderful imagi- 
 nation and far too much for what it can deliver of the past as it really 
 was and of John’s own terms. Second, although Martyn fruitfully con- 
 siders the text of the gospel as a whole, the text he considers is one he has 
 reengineered in conformity to his construction of what lies behind it. 
 D. Moody Smith has been a primary player in Johannine studies in 
 the academy and has made many inside contributions to the field. See, 
 e.g., the collection of essays in his honor titled Exploring the Gospel of 
 John. The advantage of his scholarship for an outsider like me is that he 
 employs work such as Martyn’s, and his own of that genre, to serve the 
 reader’s confrontation with the text and not what lies behind the text. 
 See, e.g., The Theology of the Gospel of John. 
 On the Isaiah text and a related one in Mark, see Ball, Word and the Law, 
 106-17. See also Brown, John, 29:484-86. 
 Ashton provides an analysis of its chiastic structure (Understanding the 
 Fourth Gospel, 542 N. 40). 
 Ibid., 543. 
 See Brown, John, 29:490; Ashton, Understanding the Fourth Gospel, 5 41- 
 45. The familiar words of 3:16-18 are an example: “In this way God 
 loved the world, that he gave his only Son, that everyone who believes 
 in him may not perish but may have eternal life. For God did not send 
 the Son into the world to condemn the world but that the world might 
 be saved through him. Those who believe in him are not condemned, 
 but those who do not believe are condemned already, for they do not 
 believe in the name of the only Son of God.” 
 In fact, the poem is the conclusion to a section that follows the pat- 
 tern. At the end of his public ministry Jesus speaks of light, darkness, 
 and belief, and then he hides (12:35—37). Next, the editorial intervention 
 raises the question of disbelief in the starkest terms by quoting the harsh 
 text from Isaiah about God hardening hearts. The narrative then moves 
 quickly to the poetic performance of Jesus speaking. 
 In a review of work by Cormac McCarthy, Robert Hass says that Mc- 
 Carthy “parts company with post-modern practice in thinking, not that 
 everything . . . refers to nothing, but that in human life certain ancient 
 stories are acted out again and again. A writer’s moral relation to these 
 stories is like nothing so much as a craftsman’s relation to his tools, 
 and nothingness is not to be counted for the pleasure of merely circu- 
 lating, but built against, sentence by sentence . . . if hopelessly, in the 
 knowledge of the doom of all human intention, then indefatigably, in 
 the knowledge of the skills of a trade that has been passed down to one 
 
 NOTES TO CHAPTER 23 251 
 
and that will be passed in turn to other hands.” Hass describes this as 
 “a male ethic. It may be the American male ethic, but it descends to us 
 from sources as old as the ‘Odyssey’ and the ‘Aeneid.’ . . . [It is an] old 
 ethic of work, a male ethic undertaken in pity and desperation” (New 
 York Times Book Review, June 12, 1994, sec. 7, p. 1, col. 3). This is not the 
 ethic of John. 
 
 24. John’s Freedom from and for Law 
 
 1 Harvey, Jesus on Trial, 58. If a Jewish court “found Jesus guilty on a 
 capital charge, either Jesus must have been properly condemned in the 
 sight of God . . . or else, in some way, the system itself must have been 
 at fault” (ibid., 6). 
 
 Ibid., 81. 
 
 Watson, Jesus and the Jews, 46-47. 
 
 See Harvey, Jesus on Trial, 103. 
 
 Watson, Jesus and the Jews, 76. 
 
 Harvey, Jesus on Trial, 45. 
 
 See Bultmann, Gospel of John, 633. 
 
 Such an assumption would require elaborate justification. It would have 
 to be shown that law does evolve from worse to better according to a 
 shared standard of goodness. Whether law is good or bad is not John’s 
 
 onnanawn & WwW PY 
 
 concern. Law falls under judgment either way. 
 
 9 How this is so and what consequences it has for law has been the sub- 
 ject of much of my writing. For example, in The Word and the Law | 
 employed the figure of Dilsey from Faulkner’s Sound and the Fury to ex- 
 plore the characteristics of postresurrection life, and I devoted the last 
 chapter of that book to death in law and the making it alive in prac- 
 tice, that is, the embodying of new life in law (Word and the Law, 87- 
 90, 136-64). In Lying Down Together, | took up what it might mean to 
 take responsibility for law (15-17) and explored the subject in the ex- 
 tended example of environmental law and the law of the sea (21-118). 
 I concluded by employing the metaphor of law in a peaceable kingdom 
 to describe law in the wholly different context suggested by the bibli- 
 cal stories (119-36). “New beginning” was the metaphor I followed in 
 The Promise of American Law to propose how constitutional law, and to 
 a lesser extent property law, might be read in light of the biblical stories 
 of creation, reconciliation, and redemption. 
 
 10 He could have employed other languages, including that of apocalyptic 
 poetry as is done in the Book of Revelation, identified as The Revelation 
 to John. 
 
 ll Macrae, Theology and Irony in the Fourth Gospel, 105. 
 
 12 Umberto Eco describes the Book of Kells as “the product of cold- 
 
 252 NOTES TO CHAPTER 24 
 
13 
 
 14 
 
 blooded hallucination” (Kells Commentary [1990], 14, cited in Bernard 
 Meehan, The Book of Kells [London: Thames and Hudson, 1994], 9). At 
 the top of the page containing the opening of John in the Book of Kells 
 perches a figure holding a book or tablet. Presumably this is the writer 
 of the gospel. I have kept a copy of that page at hand as I have written. 
 My wife is uncertain of the attitude the face displays. I am sure that John 
 is smiling. There is laughter in him. 
 
 In the second Cana sign, a father leaves his dying son to beg Jesus’ 
 help and returns to find the child made well. In between the two, Jesus 
 has spoken of destroying the temple and rebuilding it in three days, a 
 saying the disciples are later made to remember and understand as a ref- 
 erence to the resurrection. These events reveal the core action in the 
 story: illness is turned to health; death is turned to life. 
 
 Jesus’ saying about rebuilding the temple is uttered just after he has 
 raged through the temple in an extraordinary scene in which he drives 
 out animals and people with a whip, overturns tables, and pours money 
 on the floor. Commentators suggest that, based on the location of the 
 event in other gospels, the scene is out of place and belongs later in the 
 story. Such a displacement would only emphasize the fact that the au- 
 thor’s account is juxtaposed to the Cana miracle for a purpose. One pur- 
 pose may be to express a sense of the action of the kriszs. The delightfully 
 drunken exuberance of the wedding celebration is matched at the other 
 extreme by excessive rage. 
 
 The same could be said of the Church’s appropriation of the cross. To 
 torture a person to death by crucifixion was an authorized form of capital 
 punishment in the legal system. To seize upon the cross as a symbol for 
 the story of resurrection is a form of transfiguration. Perhaps centuries 
 of abuse of the symbol — including its use as a magic wand and as a tri- 
 umphal sign of conquest, typically in colonizing wars of aggression — 
 may have severely compromised its significance. Ongoing translation 
 of the Bible has not been accompanied by an equivalent translation of 
 symbols. I am uncertain that the translation of the cross into an electric 
 chair would restore the startling integrity of the symbol. 
 
 The biblical tradition has been thought to supply a ground for an obli- 
 gation to obey the law. I think that it does not. The texts usually cited 
 in support of such an obligation are Romans 13:1—7, Luke 20:25, 1 Peter 
 2:17, 1 Timothy 2:1-2, and Titus 3:1—2. I think that these texts lead ina 
 very different direction. I think that they and the biblical tradition as a 
 whole support an obligation to the neighbor but not to the law. I set out 
 my arguments in Obligation: Not to the Law But to the Neighbor, 18 Ga. 
 L. Rev. 911, 919-27 (1984). My chief focus there was upon the central 
 Romans text. At the time I did not see the relevance of John as support 
 for my argument. 
 
 NOTES TO CHAPTER 24 253 
 
15 My understanding of the relationship of the penultimate to the ultimate 
 is drawn from Dietrich Bonhoeffer. I elaborated my understanding of 
 the subject in Ball, Lying Down Together, 126-38. 
 
 25. Lawyers’ Independence 
 
 —" 
 
 Robert Gordon notes that lawyers talk about professional independence 
 in the sense of corporate self-regulation and control over conditions of 
 work, but he is chiefly interested, as am I, in the political, social inde- 
 pendence of lawyers (The Independence of Lawyers, 68 Boston U. L. Rey. 
 1 [1988]). His article is a thorough, well-taken assessment of the subject. 
 ABA, Model Code, Canon 5; ABA, Model Rules, Rule 2.1. 
 
 See, e.g., ABA, Model Code, EC 5-1, Canon 7, EC 7-1, EC 7-19; ABA, 
 Model Rules, Rule 1.2; ALI, “Restatement,” sec. 34, 115, 117A. 
 
 we Ye 
 
 4 The issue has been most recently and publicly ventilated in conjunction 
 with the question of attorney-client privilege between counsel to the 
 president and the president and in the circumstance of the independent 
 counsel’s investigation of President and Mrs. Clinton’s involvement in 
 the bundle of matters known as Whitewater. 
 
 ABA, Model Code, EC 7-13. 
 
 6 Gordon, /ndependence of Lawyers, 17. Because corporate lawyers, for 
 
 wn 
 
 whatever reason, find little or nothing to challenge in their clients’ inter- 
 ests, they may need particular encouragement to maintain their inde- 
 pendence. See ibid., 56-58. 
 
 7 “Lawyers are sometimes in the best position to know when some of the 
 strategic tools of law — formalism, proceduralism, and adversarial atti- 
 tude — will defeat their clients’ overall goals by poisoning the cultural 
 environment in which their clients operate” (Gordon, /ndependence of 
 Lawyers, 18). 
 
 This kind of hoped-for moral limitation on clients’ power does not ex- 
 plain another example of mandated distance between the attorney and 
 her client known as the rule against vouching for clients: An attorney 
 may not publicly assert her personal belief in a client’s innocence or in 
 the justness of a client’s cause (ABA, Model Code, DR 7-106. C.4 [1981]; 
 ABA, Model Rules, Rule 3.4 [e] [1983]). (The voucher at the end of John 
 would be off-limits: “We know that his testimony is true.”) This rule 
 does share with the others the belief that an attorney should never be- 
 come fully the servant of her client, but the arguments in favor of it are 
 not strong and neither the letter nor the spirit of it appear to be often 
 observed. 
 
 Thomas Shaffer points out that the ethical injunction against vouch- 
 ing for clients is routinely avoided by the use of indicative statements 
 
 254 NOTES TO CHAPTER 25 
 
and the avoidance of first-person pronouns. Instead of, “I believe the 
 defendant is innocent,” an attorney says: “I believe the evidence shows 
 the defendant is innocent,” or better: “The evidence shows the defen- 
 dant is innocent.” This is a side point to the real business of his article, 
 which is to make an appeal to lawyering as friendship: “The way to avoid 
 pretense in advocacy is to say what you mean and to mean both what 
 you say and what you seem to mean in what you say and do. We come to 
 mean what we say about the subjects and the objects of our advocacy — 
 the people involved, rather than the words—by approaching them with 
 benevolence. We are then, in the ordinary meaning of the word, friendly” 
 (Shaffer, The Legal Profession’s Rule against Vouching for Clients: Advo- 
 cacy and “The Manner That Is the Man Himself,” 7 Notre Dame J. of L. 
 & Pub. Policy 145, 169 [1993]). 
 
 Much of Thomas Shaffer’s extensive, affecting writing and personal- 
 professional example have been devoted to the kind of friendship that 
 appropriately characterizes a lawyer’s relation to clients. 
 
 Shaffer holds a robust Aristotelian view of friendship and does not 
 mean by it that lawyers should be running dogs for clients. See, e.g., 
 Shaffer, A Lesson from Trollope, 35 Wash. & Lee L. Rev. 727 (1978). His 
 views are therefore very different from those of Charles Fried. See Fried, 
 The Lawyer as Friend, 85 Yale L. J. 1060 (1976). See also Edward Dauer 
 and Arthur Leff, Correspondence: The Lawyer as Friend, 86 Yale L. J. 573, 
 578-79 (1977). And Clyde Spillenger states the obvious in noting that 
 it is irrelevant to advise corporate counsel for RJR Nabisco to develop 
 greater empathy toward her client and bizarre to suggest that the legal 
 services lawyer practice steely independence from the embattled person 
 she represents (Elusive Advocate, 1522-23). 
 
 It is also unclear to me that distance is always, everywhere correct 
 for judges. See, e.g., the examples of judges Margaret Taylor and David 
 Harding in Ball, Word and the Law, 24-49. See also below on the Inter- 
 national People’s Tribunal in Hawai'i. 
 
 Part of the difficulty may lie in confusing the sought-for independence 
 with personal distance or lack of empathy. The independence that arises 
 from commitment to the larger responsibilities of law and lawyering 
 may well require a lawyer to identify with her clients. It was the He- 
 brew midwives’ regard for the transcendent (“they feared God”) that 
 led them to close alignment with their clients. Because he is committed 
 to justice, John Rosenberg is thoroughly committed to the legal services 
 clients among whom he lives in eastern Kentucky: “They are asking for 
 justice, and what they ask for is usually right” (Ball, Word and the Law, 
 24). See also Michael Winerip, “What’s a Nice Jewish Lawyer Like You 
 Doing in Appalachia,” New York Times Magazine, June 29, 1997, p- 24- 
 And lawyers who serve business people may equally realize a commit- 
 
 NOTES TO CHAPTER 25 255 
 
ment to justice in close relationships with their clients. In contrast, those 
 lawyers with no commitment to public good may be the most profes- 
 sionally and personally distant from their clients. The independence of 
 judges should be reexamined with respect to the same issue. 
 
 10 Conceiving and practicing independence in terms of interests may con- 
 stitute another difficulty: a lawyer withholds something from serving 
 clients’ interests in order to serve the public interest. 
 
 Hannah Arendt pointed out that, in a governmental system like ours 
 as it has come to be, interests are represented, but a citizen’s opinion and 
 action cannot be represented because they are nondelegable (On Revo- 
 lution, 228-32, 272-73). (I explored the general issue throughout The 
 Promise of American Law, and this specific point of Arendt’s at pp. 89-90 
 of that book.) 
 
 A citizen is left to bring various forms of pressure on her representa- 
 tive to execute her interest. (“If you don’t vote for my interest in Con- 
 
 29 6 
 
 gress, I won’t vote for you in the next election.” “I have lots of money for 
 candidates. Vote my way.”) This residue of political power held by the 
 citizen resembles the coercive power of the blackmailer and is not “the 
 power that arises out of joint action and joint deliberation” (Arendt, On 
 Revolution, at 273). 
 
 Similarly, if a lawyer represents clients’ interests rather than clients, 
 and clients’ opinions and actions are excluded, the same dynamic takes 
 hold. Clients pressure hesitant lawyers to execute their wishes, and law- 
 yers can only express independence by either declining or terminating 
 the representation. They cannot express independence as freedom to 
 participate in joint action and joint deliberation as they can if they repre- 
 sent people. 
 
 Thomas Shaffer points out that “ “client interest’ is a prominent notion 
 in codified American legal ethics, where it seems to mean either the pur- 
 poses stated by a lawyer’s client when he comes to a lawyer, or (more 
 often and more dismally) the purposes a lawyer supposes, without ask- 
 ing, that his client has or should have in view. ‘Client interest’ is not a 
 given, in either of these ways, when your client is your friend. It is then, 
 at first, not so much a purpose as it is a project. Friends collaborate in 
 the good; if the interest one of them claims is not consistent with the 
 collaboration in the good, friends who have a stake in one another's char- 
 acter collaborate in what Karl Barth called conditional advice” (Shaffer, 
 Legal Profession’s Rule against Vouching for Clients, 175). 
 
 On the question of political representation, see Hanna Pitkin, Repre- 
 sentation (New York: Atlantic, 1966); and especially her Concept of Rep- 
 resentation (209-40). See also her discussion in the latter book of politi- 
 cal representation of people who have interests (ibid., 190-208). She 
 remarks that an attorney is “a specialist who acts for others” (ibid., 138). 
 
 256 NOTES TO CHAPTER 25 
 
ll 
 
 David Luban develops the idea of representativeness as a way to ana- 
 lyze and think about the public interest lawyer’s representation of a 
 client class (Lawyers and Justice, 344-55 passim). 
 
 The notion of public as well as private interest may also color an at- 
 torney’s understanding and performance of her role. A commonweal 
 expressed and experienced as an interest is unstable. If public interest 
 is a pool of differing private interests, then, as Augustine said, “what is 
 longed for either suffices for none, or not for all” (The City of God, trans. 
 Marcus Dods [New York: Random House, 1950], bk. 18, chap. 2, 610). 
 Because citizens and nations compete with each other for what not all 
 can have, the “earthly city” is necessarily “divided against itself by liti- 
 gations, wars, quarrels, and such victories as are either life-destroying 
 or shortlived” (ibid., bk. 14, chap. 4, 481). 
 
 I explored these matters generally in The Promise of American Law, 
 and Augustine’s point specifically at pp. 37-38, 92. I returned to the 
 issue of representation in the processes of government in Lying Down 
 Together, especially at pp. 65-118, and to Augustine’s point in particular 
 at p. IOI. 
 
 If public interest is some higher interest above others, it must none- 
 theless compete with them. Perhaps this is why public interest law has 
 become a specialty that must compete with and often against other types 
 of practice for money, personnel, attention, power, and victory. In a 
 world composed of interests—common or higher—the lawyer must 
 maintain the vigilant independence of the heroic but mercenary warrior. 
 The third difficulty in sorting out the independence of the lawyer is the 
 assumption, or temptation, that a lawyer has privileged knowledge of 
 what clients want, what is good for them, and how to get it. 
 
 The assumption is rarely if ever valid and generally always works 
 harm to both clients and attorneys. Clark Cunningham successfully 
 undertakes an extraordinarily sensitive, instructive examination of the 
 presence and negative effect of the assumption in The Lawyer as Trans- 
 lator, Representation as Text: Towards an Ethnography of Legal Discourse 
 and A Tale of Two Clients: Thinking about Law as Language. 
 
 The dangers of the temptation are also explored in a thoughtful and 
 challenging way in Clyde Spillenger’s study of Louis Brandeis’s lack of 
 concern for both solutions other than his own and dialogue with clients 
 that might prove morally improving for him (Spillenger, E/ustve Advo- 
 cate, 1527-35). 
 
 The assumption also denies the opposite possibility, that law is invi- 
 tation and that lawyers bring their vulnerability to clients and to dia- 
 logue with them, a possibility wonderfully realized in Emily Hartigan, 
 The Power of Language beyond Words: Law as Invitation, 26 Harv. Civ. 
 Rts.—Civ. Lib. L. Rev. 67 (1991). 
 
 NOTES TO CHAPTER 25 257 
 
David Luban has pointed out that it may be “the lawyer rather than 
 the client who will eventually modify her moral stance. If it is a mistake 
 to take the client’s ends as preset and inflexible, it is also a mistake to as- 
 sume that the lawyer is incapable of learning from the client what justice 
 really requires” (Lawyers and Justice, 174). 
 
 Independence granted to lawyers on the ground that they possess su- 
 perior as well as expert knowledge subverts the profession. 
 
 12 Gordon, Independence of Lawyers, 13. See also David Luban’s notion 
 of “moral activism” (Lawyers and Justice) and William Simon’s idea of 
 “ethical autonomy” (Ethical Discretion in Lawyering, 101 Harv. L. Rev. 
 1083 [1988]). 
 
 13. See, e.g., Mary Ann Glendon, 4 Nation under Lawyers (New York: Farrar, 
 Straus and Giroux, 1994); Anthony Kronman, The Lost Lawyer (Cam- 
 bridge, Mass.: Harvard University Press, 1993). For a recent collection 
 of assessments, including a wonderful evaluation of lawyer jokes, see 
 Galanter (from the inside), Goldstein (from a journalist’s perspective), 
 Tyler (from the psychologist’s perspective), collected in 66 U. Cinn. L. 
 Rey. 877 (1998). 
 
 14 Marc Galanter and Thomas Palay, Tournament of Lawyers: The Trans- 
 formation of the Big Law Firm (Chicago: University of Chicago Press, 
 1991), 2-3. 
 
 15 Commission on Professionalism (Stanley Commission Report), “. . . Jn 
 the Spirit of Public Service”: A Blueprint for the Rekindling of Lawyer Pro- 
 fessionalism, 12 FRD 243, 248 (1987) (quoting Roscoe Pound). 
 
 16 Ibid., 261. 
 
 17 Thomas Shaffer and Mary Shaffer, American Lawyers and Their Commu- 
 nities (Notre Dame, Ind.: Notre Dame University, 1991), 66. 
 
 Since the chief justice’s call and the commission’s response, Shaffer 
 notes, “professionalism has become the A.B.A. party line; lawyer pro- 
 fessionalism has a national office, a logo, a motto, its own journal . . . , 
 and a budget” (ibid., 65). The bar has not been discouraged from think- 
 ing that the lawyer has “license to lie, to cheat, and to abuse, if only we 
 are professional when we do it” (ibid., 72). 
 
 The commission noted that law schools and their faculties have the 
 first cut at a student’s professionalism. The Association of American Law 
 Schools took the hint and shortly adopted a “Statement of Good Prac- 
 tices.” It serves less as a statement of guidance than as a sad commentary 
 on the realities we settle for. It contains such admonishments as teachers 
 should prepare for and meet classes, treat students with respect, be im- 
 partial, and refrain from muscling colleagues on governance votes. The 
 statement does tack on to the conclusion two aspirations that are wel- 
 come even if they are non sequiturs: teachers of law should engage in 
 pro bono work, and, because they do not live off client fees, they are spe- 
 
 258 NOTES TO CHAPTER 25 
 
19 
 
 20 
 
 21 
 22 
 
 23 
 24 
 
 25 
 
 26 
 27 
 
 cially obligated to pursue justice (AALS, 2994 Handbook, 89 [adopted 
 by the executive committee, Nov. 17, 1989]). The bland, widely and de- 
 servedly unnoted statement did not forestall an ABA move on the law 
 schools in the form of the MacCrate Report. See below. 
 
 This was the ABA Section of Legal Education and Admissions to the 
 Bar’s Task Force on Law Schools and the Profession: Narrowing the 
 Gap. “The gap” refers to a gap between law schools and the practice of 
 law. 
 
 The Association of American Law Schools was established in 1900 at 
 the urging of the aBa. The two met regularly until 1915. The elite law 
 schools, seeking to engage the bar’s help in raising law school standards, 
 successfully promoted the aBa’s Section of Legal Education and Admis- 
 sions to the Bar founded in 1920. It became the law school accrediting 
 agency. 
 
 The task force report is titled Legal Education and Professional Devel- 
 opment—An Educational Continuum, Report of the Task Force on Law 
 Schools and the Profession: Narrowing the Gap (1992) (hereafter MacCrate 
 Report). 
 
 According to the report, the practice of law is composed of solving 
 clients’ problems (skill no. r) (141-42); organizing rules and principles to 
 apply to the problems (skill no. 2) (151); having a “working knowledge” 
 of the rules and institutions that apply (kill no. 3) (457); investigating 
 the facts of the problem (skill no. 4) (163); and applying “communicative 
 skills” to the process (skill no. 5) (172). 
 
 Ibid., 203-4. 
 
 “Fundamental Values of the Profession,” sec. 2, “Striving to Promote 
 Justice, Fairness, and Morality” (MacCrate Report, 213). This section is 
 also keyed into the prior skill of counseling (ibid., 177, 181-82, 184). 
 Ibid., 259 n. 38. See also 258 n. 37. 
 
 The profession does have worthy characteristics, and one that is both 
 wonderful and dangerous is the capacity for just subversion, elegantly 
 accomplished, as though it were an endorsement of the thing subverted. 
 So was it with the group who wrote this installment. 
 
 Teaching and Learning Professionalism, Report of the Professionalism 
 Committee, ABA Section of Legal Education and Admission to the Bar 
 (1996) (hereafter Teaching and Learning). 
 
 Ibid., 6. 
 
 Roger Cramton is sharply critical of the report. He views the bar’s old 
 moral tradition as one in which, if client interests conflicted with the 
 rule of law, the lawyer would respect the rule of law. He believes that 
 the bar has abandoned the old morality for the new heresy of making 
 client interests the first and only consideration. He also believes that the 
 report instead of addressing the problems affirms abstractions as lying at 
 
 NOTES TO CHAPTER 25 259 
 
2 
 29 
 
 co 
 
 3 
 3) 
 32 
 
 —- & 
 
 the heart of professionalism (Cramton, “On Giving Meaning to ‘Profes- 
 in ABA Section of Legal Education and Admissions to the 
 Bar Professionalism Committee on Professionalism and Lawyer Com- 
 
 999 
 
 sionalism, 
 
 petence of the ABA Center for Professional Responsibility, Symposium 
 Proceedings, October 2-4, 1996 [1997], 7, 9)- 
 
 Teaching and Learning, 6 n. 22. 
 
 Robert Cover, The Folktales of Justice: Tales of Jurisdiction, 14 Cap. U. L. 
 Rev. 179, 190 (1985). 
 
 See Ball, Word and the Law. 
 
 Gordon, Independence of Lawyers, 63. 
 
 The committee that commended “dedication to certain ideals as a way 
 of life as part of a specialized group” presumably meant that the group 
 was the bar and that the ideals are those of the rule of law. 
 
 Carol Weisbrod observes that “lawyers cannot be pure outsiders, after 
 all. Their subject is intrinsically social and in America at least some de- 
 gree of satisfaction with existing institutions is taken for granted . . . , 
 often under the heading ‘the rule of law’” (Building Community in 
 Sarastro’s Dungeon, 9 Yale J. of L. & Human. 443, 449 [1997]). 
 
 On the rule of law, John Rawls proposed “that the conception of 
 formal justice, the regular and impartial administration of public rules, 
 becomes the rule of law when applied to the legal system” (4 Theory of 
 Justice [Cambridge, Mass.: Harvard University Press, 1971], 235). A legal 
 system fitly requires: (1) only what can be reasonably done; (2) that simi- 
 lar cases be treated similarly; (3) that laws be known and general; (4) that 
 due process be satisfied (ibid., 236-38). “The principle of legality has a 
 firm foundation . . . in the agreement of rational persons to establish for 
 themselves the greatest equal liberty. To be confident in the possession 
 and exercise of these freedoms, the citizens of a well-ordered society 
 will normally want the rule of law maintained” (ibid., 239-40). 
 
 A very different view is held by Howard Zinn: “The ‘rule of law’ 
 in modern society is no less authoritarian than the rule of men in pre- 
 modern society; it enforces the maldistribution of wealth and power as 
 of old, but it does this in such complicated and indirect ways as to leave 
 the observer bewildered. . . . In slavery, the feudal order, the colonial 
 system, deception and patronization are the minor modes of control; 
 force is the major one. In the modern world of liberal capitalism (and 
 also, we should note, of state socialism), force is held in reserve while... 
 ‘a multitude of moral teachers, counselors, and bewilderers separate the 
 exploited from those in power.’ In this multitude, the books of law are 
 among the most formidable bewilderers” (“The Conspiracy of Law,” 
 in The Rule of Law, ed. Robert Wolff [New York: Simon and Schuster, 
 1971], 1819). 
 
 The shortest definition I have seen is “Rule of law means exercise of 
 
 260 NOTES TO CHAPTER 25 
 
33 
 34 
 35 
 
 36 
 37 
 38 
 
 39 
 
 40 
 41 
 42 
 43 
 
 45 
 46 
 
 publicly justifiable power” (Michael Zuckert, “Hobbes, Locke, and the 
 Problem of the Rule of Law,” in Nomos XXXVI: The Rule of Law, ed. 
 Ian Shapiro [New York: New York University Press, 1994], 64). It is short 
 but neither simple nor uncontested, as witness the remainder of Zuck- 
 ert’s essay and the range of debate in the other essays contributed to that 
 same, interesting volume. 
 
 ABA, Model Code, 1. 
 
 Quoted in Cover, Folktales of Justice, 201. 
 
 Richard Posner, The Problems of Jurisprudence (Cambridge, Mass.: Har- 
 vard University Press, 1990), 468. 
 
 See ibid., 442. 
 
 Ibid., 467. 
 
 In different ways, Thomas Shaffer and Aviam Soifer have developed this 
 point well and persuasively, and I am indebted to them and their work. 
 See Shaffer and Shaffer, American Lawyers and Their Communities; Soifer, 
 Law and the Company We Keep (Cambridge, Mass.: Harvard University 
 Press, 1995). 
 
 Robert Granfield, Constructing Professional Boundaries in Law School: 
 Reactions of Students and Implications for Teachers, 4 S. Cal. Rev. of L. & 
 Wom. St. 53, 63 (1994). 
 
 Ibid., 68. 
 
 Ibid. 
 
 Ibid., 69. 
 
 I cite the Granfield study, but I could have offered my own anecdotal 
 evidence about some students and about the professionally competent 
 lawyers they become and about how ten, twenty, or thirty years out, 
 often in practices of great financial value, they have come to wonder 
 what human worth their practices have. And they find very little. 
 
 See generally, Walt Bachman, Law y. Life (Rhinebeck, N.Y.: Four Di- 
 rections, 1995), an important and readable book. 
 
 Granfield, Constructing Professional Boundaries in Law School, 70-72. 
 Ibid., 71. 
 
 Ibid. 
 
 I am among the many who have been profoundly influenced by String- 
 fellow. I was and continue to be struck in particular by his Private and 
 Public Faith; My People Is the Enemy (New York: Holt, Rhinehart and 
 Winston, 1964); An Ethic for Christians and Other Aliens in a Strange 
 Land (Waco, Tx.: Word, 1973); and Conscience and Obedience (Waco, Tx.: 
 Word, 1977). 
 
 Andrew W. McThenia of the Washington and Lee Law School has 
 rendered exemplary service in continuing to confront the bar and the 
 legal academy with Stringfellow’s example. See, for one instance, Radi- 
 cal Christian and Exemplary Lawyer (Grand Rapids, Mich.: Eerdman’s, 
 
 NOTES TO CHAPTER 25 261 
 
1995), a book he conceived, gathered, and edited. This is not his only 
 labor of love. He is himself a keeper of the Word as a practitioner of law. 
 
 48 See, e.g., Stringfellow, Ethic for Christians and Other Aliens in a Strange 
 Land, 84-86. Selections from Stringfellow’s writings are available in 4 
 Keeper of the Word, ed. Bill Wylie Kellermann (Grand Rapids, Mich.: 
 Eerdmans, 1994). The passage cited above can be found in this book at 
 pp- 242-44. It is clearly best to read Stringfellow’s works in their origi- 
 nal form, but his books are presently out of print and can be difficult to 
 locate. The Kellerman selection performs a useful service. 
 
 49 William Stringfellow, “A Lawyer’s Work,” Christian Legal Society Quar- 
 terly 3, no. 3 (1982): 17; Stringfellow, 4 Simplicity of Faith (Nashville, 
 Tenn.: Abingdon, 1982), 125-33. The churning that kept bringing the 
 question to the surface was a function of his ongoing, serious reading of 
 the Bible. That was the source, too, of his understanding of the fallen- 
 ness of institutions and the dispiriting hubris that leads people to think 
 they can humanize institutions: “Americans particularly persevere in be- 
 laboring the illusion that at least some institutions are benign and viable 
 and within human direction or can be rendered so by discipline or reform 
 or revolution or displacement” (Ethic for Christians and Other Aliens in 
 a Strange Land, 83). 
 
 50 Stringfellow, Ethic for Christians and Other Aliens in a Strange Land, 86, 
 emphasis omitted. 
 51 See ibid., 133. 
 
 52 Andrew McThenia observes: “It is not, as some have argued, that String- 
 fellow thought that law was nothing but a tool of oppression or, as others 
 have maintained, that he was unconcerned with justice. He saw law as 
 necessary, even as a gift from God. And he spent his life in the struggle 
 for justice. But law, like all other powers and principalities, is fallen. Law 
 is one means, the primary one, that a modern liberal democracy has to 
 safeguard itself and the promised freedom of its members. Stringfellow 
 never denied the value or the necessity of law for those purposes. But 
 many liberal academic lawyers insisted on going further. They asserted 
 that not only is law necessary to preserve the peace treaty of a liberal 
 democracy; it is in fact the source of our values. Law is that which gives 
 expression to those ‘objective’ values in our culture. These lawyers saw 
 a large role for law, linking the reality of the present with the world as 
 we imagine it should be. Law had an almost transcendent quality” (“An 
 Uneasy Relationship with the Law,” in McThenia, Radical Christian and 
 Exemplary Lawyer, 174). 
 
 53 William Stringfellow, 4 Simplicity of Faith: My Experience in Mourning 
 (Nashville, Tenn.: Abingdon, 1982); Keeper of the Word, 31. 
 
 54 Private and Public Faith, 73. 
 
 262 NOTES TO CHAPTER 25 
 
55 
 
 5 
 57 
 5 
 5 
 6 
 
 n 
 
 Co Oo 
 
 61 
 62 
 63 
 64 
 65 
 
 — 
 
 2 
 
 See Stringfellow, My People Is the Enemy, 97-101; McThenia, Radical 
 Christian and Exemplary Lawyer, 178-79. 
 
 Simplicity of Faith, quoted in Keeper of the Word, 33. 
 
 Ibid., 33-34. 
 
 Stringfellow, Conscience and Obedience, 95. 
 
 Stringfellow, My People Is the Enemy, 42. 
 
 Emily Hartigan, “Advocacy and Innocence,” in McThenia, Radical 
 Christian and Exemplary Lawyer, 122, 127. 
 
 Ibid., 124. 
 
 Ibid., 126. 
 
 Ibid., 127. 
 
 McThenia, “Uneasy Relationship with the Law,” 178. 
 
 “The business of the Johannine style,’ Wayne Meeks says, “is subver- 
 sion of reality as perceived in the common sense of a certain tradition” 
 (“The Ethics of the Fourth Evangelist,” in Culpepper and Black, Ex- 
 ploring the Gospel of John, 317, 319). Meeks notes that the gospel is no 
 vehicle of moral formation: “First, its form is wrong: It offers no explicit 
 moral instruction. . . . Second, the narrative does not provide a plausible 
 and universalizable model for behavior. . . . Third, if we take the nar- 
 rative as supplying neither rules for behavior nor models of character 
 or action but simply as rendering a narrative world to which readers are 
 invited and challenged to respond by imaginatively appropriate perfor- 
 mance, this narrative is profoundly troubling to rational kinds of moral 
 discourse. . . . Fourth, the decision that characteristically divides Jesus’ 
 audience between those who come to the light and those who remain in 
 darkness, between those who ‘abide’ to eternal life and those who draw 
 back and are condemned, is shrouded in mystery” (ibid., 318-19). Meeks 
 quotes from David Rensberger the observation that the gospel’s chal- 
 lenge lies in its sectarianism: “No religion that sees itself as the backbone 
 of a society, as the glue that holds a society together, can easily lay down 
 a challenge to that society’s wrongs. A cultural religion is all too readily 
 told to mind its own business, because it as a business, a well-known 
 role in maintaining society’s fabric unmolested. It is the sect, which has 
 no business in the world, that is able to represent a fundamental chal- 
 lenge to the world’s oppressive orders” (ibid., 325). 
 
 Epilogue 
 
 James Muilenburg, “Literary Form in the Fourth Gospel,” in The Gospel 
 of John as Literature, ed. Mark Stibbe (Leiden: Brill, 1993), 68. 
 “What we are up against is the self-referring quality of the whole gos- 
 
 NOTES TO EPILOGUE 263 
 
pel . .. which confronts the reader in a fashion somewhat like the way a 
 Semitist once explained to me how to learn Aramaic: “Once you know 
 all the Semitic languages, he said, ‘learning any one of them is easy.’ The 
 reader cannot understand any part of the Fourth Gospel until he under- 
 stands the whole. Thus the reader has an experience rather like that of 
 the dialogue partners of Jesus: either he will find the whole business so 
 convoluted, obscure, and maddeningly arrogant that he will reject it in 
 anger, or he will find it so fascinating that he will stick with it until the 
 progressive reiteration of themes brings, on some level of consciousness 
 at least, a degree of clarity. . .. The book functions for its readers in 
 precisely the same way that the epiphany of its hero functions within its 
 narratives and dialogues” (Wayne A. Meeks, “The Man from Heaven in 
 Johannine Sectarianism,” Journal of Biblical Literature 91 [1972]: 67-68). 
 
 3 Karl Barth, Anselm: Fides Quaerens Intellectum, trans. lan Robertson 
 (Richmond, Va.: John Knox Press, 1960), 69. 
 
 4 Ibid., 70. 
 
 5 Ibid., 71. This may be the explanation for the division among scholars 
 over whether the verb in John 20:31 is aorist subjunctive or present sub- 
 junctive: the gospel is written “in order that you may come to believe” or 
 “in order that you may keep on believing.” Is the implied reader someone 
 who does not believe or someone who is already a Christian believer? 
 Anselm and Barth would write for the former no differently than they 
 would for the latter. 
 
 6 “Since the [testimony] of the Revealer is identical with what it attests, 
 and not complementary to it, it finds confirmation paradoxically not 
 by appealing from the word which bears witness to the truth of that to 
 which it bears witness, but in its acceptance by faith. It is only in faith 
 in the word of witness that man can see what it is to which the word is 
 bearing witness, and consequently can recognize the legitimacy of the 
 witness himself. Thus according to 1 John 5:10, he who believes in the 
 Son has ‘the testimony in himself; that is to say, he does not need to 
 look any further for something to confirm the testimony, for he already 
 possesses it in the testimony itself” (Bultmann, Gospel of John, 163). 
 
 7 See Brown, John, 29A:555—-72. 
 
 8 “At the heart of Jesus’ ministry is the creation of a new family of God. 
 The creation of this family is symbolized here. . . . Jesus was rejected by 
 ‘his own, but the beloved disciple’s reception of Jesus’ mother signals 
 the possibility of a future marked by acceptance, not rejection” (O’Day, 
 “John,” in Newsom and Ringe, Women’s Bible Commentary, 300). 
 
 264 NOTES TO EPILOGUE 
 
Aaron, 10, I1, 13, 38—40, 75 
 
 Abraham, 2, 41, 149 
 
 Ackerman, James S., 195 n.3 
 
 Adams, James Luther, 201 n.6 
 
 The Adventures of Huckleberry Finn 
 (Twain), 88—89 
 
 Advocacy, lawyers’, 144-45. See 
 also Intercession 
 
 Alexander, Frank, 187 n.2 
 
 Aliens, care of, 35, 41. See also 
 Outsiders 
 
 Alston, Wallace, 151 
 
 Alter, Robert, 99, 151, 208 n.8, 225 
 n.7; on Biblical poetry, 43, 46, 48, 
 209 n.12 
 
 Amelekites, 13 
 
 American Bar Association (ABA), 
 24-25, 37, 138-40 
 
 American Law Institute, 24 
 
 Amos (prophet), 116 
 
 Anarchy, 86 
 
 Anselm, Archbishop of Canterbury, 
 148 
 
 Ansley, Frances, 90, 91, 92-93, 98, 
 228 nn.29, 30 
 
 The Antelope (slave ship), 86 
 
 Apperception, 3, 36 
 
 Areeda, Philip, 59, 65-66, 213 nn.11, 
 13, 214 1.15 
 
 Arendt, Hannah, 85, 87, 89, 256 n.10 
 
 Ashton, John, 128, 131, 240 n.11, 241 
 N.16, 243 N.23, 247 N.10, 251 n.4 
 
 Authority, 146-49 
 
 Baca, Jimmy Santiago, 71 
 
 Ball, June, 151 
 
 Ball, Milner, 4-5 
 
 Ball, Scott, 151 
 
 Barth, Karl, 148, 189 n.1, 194 n.29, 
 241 0.17, 244 0.27 
 
 Bell, Derrick, 187 n.2, 200 n.29 
 
 Benjamin, Don, 210 n.2 
 
 Index 
 
 Bentham, Jeremy, 85 
 
 Biblical world, as a spoken world, 
 36-37 
 
 Billy Budd (Melville), 84, 85 
 
 Black Elk Speaks (Black Elk), 65, 
 97-98 
 
 Blaisdell, Kekuni, 93, 230 n.64 
 
 Bonhoeffer, Dietrich, 254 n.15 
 
 Book of Consolation, 79, 101-2. See 
 also Rachel poem 
 
 Bramall, Joan, 212 n.1 
 
 Brandeis, Louis, 22-23, 25, 194 n.28, 
 197 n.4 
 
 Brickhouse, Thomas, 62, 217 n.10, 
 219 nn.26, 27 
 
 Bright, John, 81 
 
 The Brothers Karamazov (Dostoy- 
 evsky), 85 
 
 Brown, Raymond E.: on disbelief, 
 250 n.2; on the divine lawsuit, 
 116, 238 n.1, 239 nn.2, 5, 243 n.21, 
 244 N.27, 245 n.2(ch.20); on the 
 Jerusalem trial, 232 n.1(ch. 18), 
 233 N.3, 235 n.6, 236 n.8, 237 n.14, 
 238 n.18 
 
 Brueggemann, Walter, 31, 35, 36, 42, 
 114 
 
 Bultmann, Rudolph, 116, 233 n.3, 
 235 N.6, 236 n.8, 240 n.12, 243 n.21 
 
 Burger, Warren, 138, 141 
 
 Burial. See Death and burial 
 
 Burns, Robert, 152 
 
 Burnyeat, M. F., 58, 213 n.8, 216 n.8 
 
 Burt, Robert, 200 nn.27, 28 
 
 Calvin, John, 99 
 
 Cana, miracle at, 134-36 
 
 Canaan, entry into, 13, 38, 42, 44— 
 45 
 
 Capital punishment, 88 
 
 Catechetical method, 59 
 
 Chase, Ed, 152 
 
Chiasm: in Psalm 114, 44-45; in 
 Rachel poem, 81 
 
 Clark, Roger, 152 
 
 Clinical education, 65-66. See also 
 Public Interest Practicum 
 
 Cochran, Robert, 189 n.6 
 
 Coenen, Dan, 152 
 
 Coenen, Sally, 152 
 
 Cole, John, 220 n.28 
 
 Competence, lawyers’, 138. See also 
 Professionalism 
 
 Cooey, Paula, 151, 152 
 
 Cook, Joseph, 152 
 
 Counsel for the situation, 20—21, 
 22-26, 35-36. See also Profes- 
 sionalism 
 
 Courtrooms, as theater, 83-85, 89 
 
 Cover, Robert, 86, 93, 140 
 
 Cramton, Roger, 259 n.27 
 
 Cullman, Oscar, 235 n.4 
 
 Cunningham, Clark, 151, 187 n.2, 
 216 n.6, 222 N.3, 257 n.11 
 
 Curtis, Dennis, 56 
 
 Cynicism, in law students, 142 
 
 Dahood, Mitchell, 208 n.8 
 
 Damberg, Sarah Ball, 151, 152 
 
 Damrosch, David, 34, 41, 191 n.9 
 
 Danto, Arthur, 3 
 
 Death and burial: of Miriam, 76; 
 of Moses, 34, 38, 39, 76, 105; of 
 Rachel, 77-78 
 
 DeGaulle, Charles, 141 
 
 Delgado, Richard, 187 n.2 
 
 Demand, Nancy, 213 n.8 
 
 DeMille, Cecil B., 9 
 
 Demos, Raphael, 212 n.4 
 
 Denvir, John, 220 n.28 
 
 Deuteronomy, authors of, 39-40 
 
 Dinerstein, Robert, 224 n.15 
 
 Disciples, Jesus’, 18-19, 127-28, 
 136 
 
 Dostoyevsky, Fyodor, 85 
 
 Downs, Addie, 152 
 
 Downs, Bertis, 152 
 
 Downs, Katherine, 152 
 
 266 INDEX 
 
 Dworkin, Ronald, 222 n.2 
 Dzienkowski, John, 198 n.11, 200 
 nn.25, 29 
 
 Ecclesiastes, Book of, 44 
 
 Education, law. See Law school 
 
 Eisele, Thomas, 151, 152, 219 n.27, 
 220 n.28 
 
 Eleazar (Moses’ son), 38 
 
 Elkins, James R., 220 n.28 
 
 Emotions, in law. See Law and tears 
 
 Ephraim, in Rachel poem, 78, 79, 
 81 
 
 Eristic method, 59 
 
 Esau, 77, 78 
 
 Ethics. See Professionalism 
 
 Exile of Israel, 78, 79 
 
 The Exodus story: as childbirth, 
 54-55; Hebrew midwives in, 51— 
 53; in Psalm 114, 42-43, 46-47; 
 Song of Miriam in, 75; summary 
 of, 12-13 
 
 Fiss, Owen, 200 n.29 
 Fletcher, George, 152 
 Fokkelman, J. P., 208 n.9 
 Frank, John, 22, 23 
 Frug, Mary Jo, 215 n.18 
 
 Galanter, Marc, 138 
 
 Gilmore, Grant, 192 1.3 
 
 God: authority of, in Moses Saga, 
 146-47; faithfulness of, 31-32; 
 identity of, 32-33; as midwife, 
 55-56; as mother, 99; mouth of, 
 10, 12, 15, 31, 39-40; womb of, 
 99-105 
 
 Gordon, Robert, 137, 138, 140, 141, 
 254 NI 
 
 Granfield, Robert, 141-42 
 
 Greenawalt, Kent, 152 
 
 Guilding, Aileen, 238 n.17 
 
 Gutman, Amy, 220 n.28 
 
 Hagar, 56 
 Hamilton, Alexander, 87 
 
Hamline Law School, 187 n.2 
 
 Hand, Learned, 189 n.6 
 
 Hart, H. L. A., 88, 222 n.2 
 
 Hartigan, Emily Fowler, 70, 144- 
 45, 151, 187 n.2, 223 n.10 
 
 Harvard Law School, 142 
 
 Harvey, A. E., 114, 134, 135, 240 n.11 
 
 Hass, Robert, 251 n.8 
 
 Hauerwas, Stanley, 151 
 
 Hawai‘i, natives of. See Kanaka 
 Maoli 
 
 Hazard, Geoffrey, 23-24, 26, 200 
 n.26 
 
 Hebrews. See Israelites 
 
 Heston, Charlton, 9 
 
 Hoftheimer, Michael, 152 
 
 Holiness, of Israelites, 34-35, 41, 
 104-5 
 
 Homesteaders, Kanaka Maoli, 
 94-96 
 
 Hosea (prophet), 116 
 
 Idolatry, of the golden calf, 14, 
 19-21, 29-30, 74 
 
 Idols, laws as, 14-16 
 
 Intercession: of Moses, 18-21, 27— 
 30, 31-32, 45-46, 82; of Rachel, 
 78, 82 (see also Rachel poem) 
 
 International People’s Tribunal, 
 Hawai‘i, 90, 93-97, 98, 153-86 
 
 International Tribunal on the 
 Rights of Indigenous People, 
 25 
 
 Irony, in the Gospel of John, 120 
 
 Isaiah, Book of, 2, 117, 120-21, 
 129-30, 131 
 
 Isaiah (prophet), 116 
 
 Israelites: exile of, in Rachel poem, 
 78, 79, 81; identity and indepen- 
 dence of, 34-35; and observance 
 of the law, 11-12; in priesthood, 
 I1, 38, 74 
 
 Jackson, Te Moana Nui A Kiwi, 98 
 Jacob, story of, 77, 78 
 Jacobsen, Thorkild, 201 n.6 
 
 Jacobson, Arthur, 14, 16, 21, 27, 193 
 nn.22, 23, 201 n.2, 202 n.10 
 
 Jenson, Robert, 31, 35, 232 n.10, 248 
 n.15 
 
 Jeremiah, Book of, 79, 101-2. See 
 also Rachel poem 
 
 Jesus Christ: disciples of, in Gos- 
 pel of John, 118-19, 127-28, 136; 
 execution of, by the law, 134; Last 
 Discourse of, in Gospel of John, 
 129-32; miracle of, at Cana, 
 134-36; resurrection of, 127, 135— 
 36; trial of, in Gospel of John, 
 109-14 
 
 Jewish law, and Jesus’ execution, 
 134 
 
 The Jews, in the Gospel of John, 118 
 
 John, Epistles of, 129, 132 
 
 John, Gospel of, 109-49; author of, 
 122, 123, 128, 133, 147—49; belief 
 as the purpose of, 111—12, 123- 
 24, 128, 147—49; disbelief and, 
 117-18, 129-33, 148-49; divine 
 lawsuit in, 115-22; foot-washing 
 at Last Supper, 149; irony in, 120; 
 Isaiah quoted in, 120-21, 129-30, 
 131; the Jerusalem trial, 109-14, 
 113-14; Jesus’ disciples in, 18— 
 19, 127-28; Jesus’ Last Discourse, 
 129 —32; law in, 111, 113, 115-22, 
 134-36, 142-43; miracle at Cana, 
 134-36; and the Paraclete, 115-16, 
 121, 125, 126-28; prologue, 109— 
 10, 117, 131; women in, 123-24 
 
 John the Baptist, 2, 110, 116, 117 
 
 Joshua, 13, 38 
 
 Judah, kingdom of, 79 
 
 Justice: and lawful use of force, 
 86-88; and professionalism 
 of lawyers, 141; promise of, in 
 Moses saga, 41; Socrates on, 63 
 
 Justice, figure of, 56-57 
 
 Juvenile court, 66—67 
 
 Kanaka Maoli, 90, 93-97, 98, 153—- 
 86 
 
 INDEX 267 
 
Kennedy, Duncan, 214 n.17 
 
 Kennedy, Robert, 144 
 
 Kermode, Frank, 113, 189 n.1, 232 
 n.1(¢h. 18) 
 
 Kingsfield, Professor, 59, 60, 69 
 
 Kingsley, Ben, 9 
 
 Kozol, Jonathan, 226 n.11 
 
 Kuhn, Thomas, 112 
 
 Laban, 77, 78 
 
 Labor pains image, in Jeremiah, 
 101-2 
 
 Land rights, Kanaka Maoli, 94-96 
 
 Last Stone, Suzanne, 187 n.2 
 
 Law: Arendt on, 85, 87; and counsel 
 for the situation, 20—21, 22-26, 
 35-36; freedom from, 134-36, 
 141-44 (see also Professional- 
 ism); as God’s gift, 15; in the 
 Gospel of John, 11, 113, 115-22, 
 134-36, 142-43; as idol, 14-16; 
 limits and discipline of, 85-88; 
 moral scrutiny of, 88-89; self- 
 transcendence of, 89-90 
 
 Law and tears, 83-98; Arendt on, 
 89; emotion, role of, 83-85; 
 International People’s Tribunal, 
 Hawaii, 93-97, 153-86; and law- 
 ful use of force, 85, 86—88; and 
 moral scrutiny of law, 88-89; and 
 self-transcendence of law, 89— 
 go; and supplication, 89, 98; and 
 Tennessee plant closings, 90-93. 
 See also Rachel poem 
 
 Law of Moses, 11-17; as idol, 14— 
 15; observance of, as protection, 
 11-12; writing of, 13-17. See also 
 Moses: as mouth for God 
 
 Law practice, Socratic. See Public 
 Interest Practicum 
 
 Law school: cynicism in, 142; and 
 professional ethics, 141-42; 
 Socratic method in, 58, 64. See 
 also Public Interest Practicum 
 
 Lawyers: as advocates, 144-45; dis- 
 empowerment of clients by, 69; 
 
 268 INDEX 
 
 independence of (see Profession- 
 alism); as midwives, 65, 72-73; as 
 scribes, 71-72; sense of morality 
 in, 39 
 
 Leah, 77, 78 
 
 Lehmann, Paul, 3, 6, 36, 189 n.1, 
 204 n.22 
 
 Lesnick, Howard, 222 nn.1, 3, 5 
 
 Levinson, Bernard, 152 
 
 Levites. See Priesthood, Israelite 
 
 Lewis, Ted, 151 
 
 Lili uokalani (Queen of Hawaii), 
 94 
 
 Liturgical calendar, in Gospel of 
 John, 113 
 
 Luban, David, 256 n.10, 257 n.11 
 
 MacCrate Report, 139, 141 
 
 Macrae, George, 136, 245 n.3 
 
 Madison, James, 86 
 
 Magdalene, Rachel, 152 
 
 Maieutic method, 58, 59, 64, 72 
 
 Manna, 18 
 
 Mannheim, Karl, 112 
 
 Maquiladora zone workers, Mexico, 
 90-93 
 
 Marshall, John, 86 
 
 Martyn, J. Louis, 250 n.2 
 
 Mary Magdalene, 123 
 
 Masson, Charles, 235 n.6 
 
 Matamoros workers, 90-93 
 
 Matsuda, Mari, 187 n.2 
 
 Matthews, Victor, 210 n.2 
 
 McCarthy, Cormac, 251 n.8 
 
 McCleskey v. Kemp, 87 
 
 McCormack, Virginia, 151 
 
 McKelway, Alexander, 151 
 
 McThenia, Andrew, 145, 187 n.2, 
 222 n.3, 261 n.47, 262 n.52 
 
 Meeks, Wayne, 263 n.65 
 
 Melville, Herman, 84 
 
 Menkel-Meadow, Carrie, 215 n.18 
 
 Mettenburger, Tammy, 152 
 
 Mexico, workers’ conditions in, 
 90-93 
 
 Meyaledethic method, 58, 64 
 
Micah, Book of, 75 
 
 Micah (prophet), 116 
 
 Midwifery, Socratic, 58—64; in 
 Plato’s early dialogues, 61-64; 
 in Theaetetus, 58-60. See also 
 Public Interest Practicum 
 
 Midwives, 51-57; God as, 55-56; 
 Hebrew (Shiphrah and Puah), 
 51-53, 56, 146; lawyers as, 65, 72— 
 733 Moses as, 51, 53-34, 56, 63, 745 
 scribes as, 72 
 
 Miller, Patrick, 35, 188 n.7, 191 n.8, 
 192 N.12 
 
 Minow, Martha, 187 n.2 
 
 Miriam, 74-76, 104-5, 149 
 
 Model Code of Professional Re- 
 sponsibility (1969), 24, 141 
 
 Model Rules of Professional Con- 
 duct (1983), 24 
 
 Moral scrutiny, of law, 88—89 
 
 Morgan, Jenny, 215 n.18 
 
 Moses: authority of, 146—47; birth 
 and adoption of, 52-54; and the 
 burning bush, ro—11, 146; as 
 counsel for the situation, 20-21, 
 27-28; death and burial of, 34, 
 38, 39, 76, 105; exclusion from 
 Canaan, 33-34, 38; identification 
 with God and Israel, 33; inter- 
 cessions of, 18—21, 27-30, 31-32, 
 45-46, 82; as midwife, 51, 53-54, 
 56, 63, 74; as mouth for God, 10, 
 12, 15, 31; as mouth for Israelites, 
 13, 18-21, 27-30; name of, 53-54 
 
 Moses Saga: authors of, 39-40; 
 entry into Canaan, 13, 33, 38, 42, 
 44-45; slavery in Egypt, 51-53; 
 the Exodus story (see The Exodus 
 story); and God’s authority, 146- 
 47; Hebrew midwives in, 51-53, 
 56, 146; idolatry of the golden 
 calf, 14, 19-21, 29-30, 74; prom- 
 ise of justice, 41; giving of the 
 law, 13-17; as a spoken world, 37; 
 strange details of, g—10; promise 
 of succession, 38-40; summary 
 
 of, 9; wilderness sojourn, 18, 42, 
 45-46 
 
 Muffs, Yochanon, 196 nn.5, 8, 201 
 n.5 
 
 Muilenburg, James, 147 
 
 Mullis, Vicki, 152 
 
 Native Americans, 86, 88, 97—98. 
 See also Kanaka Maoli 
 
 Neusner, Jacob, 225 n.5 
 
 North American Free Trade Agree- 
 ment (NAFTA), 92, 93, 98 
 
 Nuremberg trials, 93 
 
 Nussbaum, Martha, 63, 220 n.28 
 
 O’ Day, Gail, 246 n.5 
 Olympian gods, 31 
 Osmosis, learning by, 59 
 Our Daily Bread, 67-68 
 Outsiders, 2, 75, 78, 105 
 
 Pancaro, Severino, 248 n.15 
 
 The Paraclete, 115-16, 121, 125, 
 126—28 
 
 Parallelism, 43-45 
 
 Penultimacy of law, in the Gospel 
 of John, 136, 142-43 
 
 Peter (disciple), 119, 127 
 
 Pharoah, 51-53 
 
 Pharoah’s daughter, 52, 53 
 
 Pitkin, Hanna, 201 n.1 
 
 Plant relocations, Tennessee, 90-93 
 
 Plato’s dialogues, 58—6o0, 61-64 
 
 Platter, Charles, 151 
 
 Poetry, biblical, 43-44, 46. See 
 also Psalm 22; Psalm 114; Rachel 
 poem 
 
 Polzin, Robert, 39, 205 n.3 
 
 Pontius Pilate, 134-35 
 
 Posner, Richard, 141, 142, 222 n.2 
 
 Power, abuse of, 88 
 
 Priesthood, Israelite, 11, 38, 74 
 
 Priestly, Joseph, 112 
 
 Professionalism, 137-45; ABA 
 commissions on, 24—25, 138-40; 
 counsel for the situation, 20-21, 
 
 INDEX 269 
 
Professionalism (continued ) 
 22-26, 35-36; and justice, 141; 
 necessity for, 137-38; of String- 
 fellow, 143-45; taught in law 
 school, 141-42 
 
 Prophets, succession of, 39 
 
 Proslogion (Anselm), 148 
 
 Psalm 22, 55 
 
 Psalm 114, 42-48; chiasm in, 44-45; 
 the Exodus story in, 42-43, 46- 
 47; simultaneity in, 46; themes 
 of, 42 
 
 Puah and Shiphrah, 51-53, 56, 146 
 
 Public Interest Practicum, 65-73; 
 effects of, on students, 68-72; 
 as midwifery, 72-73; tasks of, 
 66-68 
 
 Rachel, 77-78, 149 
 
 Rachel poem: “female surrounds 
 man,” 81, 82, 99, IOI, 104; as 
 intercession and supplication, 
 79-82; and the Womb of God, 
 99-105. See also Law and tears 
 
 Radin, Margaret Jane, 215 n.18 
 
 Rawls, John, 260 n.32 
 
 Resnik, Judith, 56 
 
 Restatement of the Law Governing 
 Lawyers, 24 
 
 The resurrection, 127, 135-36 
 
 Returning of the Word. See Word 
 of God 
 
 Rhode, Deborah, 215 n.18, 220 n.28 
 
 Riy (divine lawsuit), 115-19 
 
 Roman law, and Jesus’ execution, 
 134-35 
 
 Rosenberg, John, 255 n.9 
 
 Roth, Martha, 152 
 
 Rule 2.2, Model Rules of Profes- 
 sional Conduct (1983), 24, 25 
 
 Russell, Bertrand, 93 
 
 Sakenfeld, Katherine Doob, 75, 105, 
 224.6 
 Samaria, 79 
 
 270 INDEX 
 
 Samaritan woman at the well, 123- 
 24 
 
 Schneiders, Sandra, 246 n.5 
 
 Schwarzschild, Henry, 189 n.4 
 
 Scribes: lawyers as, 71-72; of Moses 
 Saga, 15-16, 39-40 
 
 Setel, Drorah O’Donnell, 54 
 
 Sexual metaphors, and God’s image, 
 55-56 
 
 Shaffer, Thomas, 24, 139, 151, 189 
 n.6, 199 n.20, 222 n.3; on lawyers’ 
 independence, 254 n.7, 255 n.8, 
 256 n.10, 258 n.17, 261 n.38 
 
 Shiphrah and Puah, 51-53, 56, 146 
 
 Shipley, David, 151 
 
 Simon, William, 204 n.21 
 
 Simultaneity, 46 
 
 Singer, Joseph, 187 n.2 
 
 Slavery, 83, 86, 87 
 
 Smith, D. Moody, 151, 248 n.15, 250 
 n.2 
 
 Smith, Nicholas, 62, 217 n.10, 219 
 nn.26, 27 
 
 Smith, Reynolds, 151 
 
 Socrates, 58, 61-64, 83, 84 
 
 Socratic midwifery. See Midwifery, 
 Socratic 
 
 Soifer, Aviam, 151, 187 n.2, 197 n.12, 
 227 n.4, 261 n.38 
 
 Song of Miriam, 75 
 
 Soup kitchens, 67—68 
 
 Spillenger, Clyde, 25, 197 n.2, 200 
 N.31, 255 n.8 
 
 The Spirit, in the Gospel of John, 
 I15—16, 121, 125-28 
 
 Spurgeon, Ned, 151 
 
 Stanley Commission, 138-39, 141 
 
 Steiner, George, 218 n.23 
 
 Sternberg, Meir, 189 n.1, 206 nn.7, 
 10 
 
 Stibbe, Mark, 243 n.21 
 
 Stone, I. F., 61, 216 n.7, 226 n.14 
 
 Stories, role of, in law, 3-4, 36 
 
 Strangers, care of, 35, 41 
 
 Stringfellow, William, 69, 86, 143- 
 44, 145 
 
Succession, promise of, 39 
 
 Sullivan, Barbara, 152 
 
 Supplication: in law, 89, 98; in 
 Rachel poem, 79-82. See also 
 Law and tears 
 
 Suy (turning), 102-3 
 
 Symposium (Plato), 58 
 
 Teaching law. See Law school 
 
 Tears, in law. See Law and tears 
 
 The Ten Commandments. See Law 
 of Moses 
 
 The Ten Commandments (film), 9 
 
 Tennessee plant closings, 90-93 
 
 Theaetetus (Plato), 58—60, 61 
 
 Thomas (disciple), 122, 127 
 
 Tomain, Joseph, 151-52 
 
 Towler, Jean, 212 n.1 
 
 Trask, Mililani, 230 n.64 
 
 Trible, Phyllis: on biblical interpre- 
 tation, 42; on God as midwife, 
 74; translation of Rachel poem, 
 79-81, 82, 102, 104, 225 nn.2, 3; 
 on sexual metaphors, 55; on abuse 
 of women, 56 
 
 Turning or returning of Israel, in 
 Rachel poem, 102-3 
 
 Twain, Mark, 88—89 
 
 Valliere, Paul, 89 
 
 Values, of lawyers, 139. See also 
 Professionalism 
 
 Vietnam War, 93 
 
 Violence: and emotion in law, 85; 
 lawful use of, 68, 85, 86-88 
 
 Vlastos, Gregory, 58, 61, 215 n.1, 216 
 nn.3, 6, 8, 218 nn.20-22 
 
 Walker v. City of Birmingham, 86- 
 87 
 
 War crimes tribunals, 93 
 
 Watson, Alan, 134, 135 
 
 Weisberg, Richard, 187 n.2 
 
 Weisbrod, Carol, 151, 260 n.32 
 
 West, Robin, 151, 187 n.2 
 
 Whipple, Sherman, 23 
 
 White, James Boyd, 151, 187 n.2, 216 
 n.6, 218 n.15, 221 n.29, 222 n.2 
 
 Williams, Patricia, 187 n.2 
 
 Williams, Susan, 215 n.18 
 
 Wirtz, Richard, 152 
 
 Wizner, Rachel, 151, 225 n.5 
 
 Wizner, Steve, 151, 214 n.14, 222 n.3, 
 223 n.12 
 
 Womb of God, 98-105 
 
 Women: abuse of, 56, 75-76; and 
 emotion in courtroom, 84; in 
 Gospel of John, 123-24; Hebrew 
 midwives, 51-53, 56, 146 (see 
 also Midwives); and labor pain 
 images, 101-2; Socrates on, 62. 
 See also names of specific women 
 
 Woodhouse, Barbara, 220 n.28 
 
 Word of God: becoming flesh, 
 110; as God’s presence among 
 Israelites, 12; returned as deliver- 
 ance from exile, 103; returned as 
 intercession, 28—29; returned as 
 obedience, 11, 47—48; returned as 
 service, 149; returning, forms of, 
 220 
 
 Zinn, Howard, 260 n.32 
 Zipporah, ro, 33 
 
 INDEX 271 
 
Milner S. Ball is the Harmon W. Caldwell Professor of 
 Constitutional Law, University of Georgia. He is the 
 author of The Word and the Law (1993), Lying Down 
 Together: Law, Metaphor, and Theology (1985), The 
 Promise of American Law: A Theological, Humanistic 
 
 View of the Legal Process (1981). 
 
 Library of Congress Cataloging-in-Publication Data 
 
 Ball, Milner S. 
 
 Called by stories : biblical sagas and their challenge for 
 law / Milner S. Ball. 
 
 p: em, 
 
 Includes index. 
 
 ISBN 0-8223-2501-2 (alk. paper) — ISBN 0-8223-2524-1 
 (pbk. : alk. paper) 
 
 1. Bible and law. 2. Practice of law — Biblical 
 teaching. 3. Legal ethics— Biblical teaching. 
 
 4. Bible. O.T. Pentateuch— Criticism, interpretation, 
 etc. 5. Bible. N.T. John—Criticism, interpretation, 
 etc. I. Title. 
 
 BS680.L33 B35 2000 
 
 261.5 —dc21 99-056925 
 
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