100 - A Lawer Looks At Religion

A Lawer Looks At Religion
By Edmond Cahn

WHAT is the very first provision one meets on reading the First Amendment in the American Bill of Rights? It is not the constitutional right to free speech or a free press, not the right to assemble and petition the government for redress of grievances, not even the right to free exercise of religion. Ahead of I all these there appears the solemn determination that in America Church and State shall be forever distinct, independent, and separate. Believing this principle indispensable to a free society, Jefferson and Madison built it into the fabric of their new nation. The practical separation of Church and State was invented in America, and it bears the identifying marks of American political genius.

But separating the Church from the State does not automatically divorce religion from the law. Since the Church and the State are, corporate institutions, ingenuity and determination can draw rather, precise lines between the jurisdiction of one and the jurisdiction of the other. It is not equally feasible to separate religion from the law. After all, the man who attends services in his Church is the same man who exercises the rights and privileges of citizenship. When religious ideals and practices are generated in the Church and, disseminated through the community, how can they fail sooner or later to influence the law of the country? Conversely, when ideals, of liberty, equality, and justice are announced and practiced in the legislatures and the law courts, how can churchmen who are also, citizens avoid responding to the inspiration? However strong the, wall of separation between Church and State as independent institutions, nevertheless there will be a continual flow of ideals, values, and even of methods between the two distinct domains. In the language of constitutional law, this is a stream of civic and moral "interstate" commerce, commerce that moves back and forth in countless subtle and indirect currents.

I

To map the course of the stream and its present influence, let me begin with some ancient insights. In ancient literature, the Baby-

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lonian Talmud presents a sagacious and sophisticated account of the commerce between law and religion. The account begins with the proposition that man must be free to exercise his mind and reason as he may see fit, independently, self-reliantly, and without interfer ence from anyone, even from a Heavenly Voice. The following paragraphs are a fair paraphrase of an episode in the Talmud.

When the scene opens, we find ourselves attending a court conference of the rabbinical sages; and we observe that one of the most distinguished among them, Rabbi Eliezer by name, is engaged in heated argument with his colleagues over a delicate, technical point in the interpretation of the law.

After exhausting all his resources of precedent, distinction, analogy, and citation of textual authority without convincing any of them, Rabbi Eliezer becomes desperate and cries out, "If the law agrees with me, let this tree prove id" Thereupon the tree leaps a hundred cubits from its place, some say four hundred cubits. But the other judges calmly retort, "No proof can be adduced from a tree." Then he says, "If the law agrees with me, let this stream of water provided. At this the stream of water flows backwards. The others rej oin however, "No proof can be adduced from a stream of water." Again he calls out, "If the law agrees with me, let the walls of the house prove it!" Whereupon the walls begin to fall. But Rabbi Joshua, one of the sages present, rebukes the walls, saying, "When scholars are engaged in a legal dispute, what right have you to interfere?" And so they do not fall, out of respect for Rabbi Joshua, nor do they resume the upright, out of respect for Rabbi Eliezer, but remain standing and inclined. Finally Rabbi Eliezer says, "If the law agrees with me, let it be proved from heaven!" At that moment a Heavenly Voice cries out, "Why do you dispute with Rabbi Eliezer, seeing that in all matters the law agrees with him?" For a space the assembly sits transfixed, but then Rabbi Joshua rises from his seat and exclaims, "The law is not in heaven! It was given on Mount Sinai. We pay no attention to a Heavenly Voice."

Soon thereafter one of the rabbis happens to meet the prophet Elijah, who, having been alive when he was transported into the celestial regions, remains able to converse with mortals. The prophet is asked, "What did the Holy One, blessed be He, do at that point?" Elijah replies, "He laughed with joy, saying, 'My sons have defeated Me, My sons have defeated Me.'"

The incident was a splendid one and the Heavenly Voice was created just as it deserved. But anyone even slightly acquainted with

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the Talmud knows this is by no means the only passage in which a Heavenly Voice was reported. According to the beliefs of that time, since direct inspiration had come to an end with the last writings in the Old Testament, the only remaining supramundane source of guidance would be the sound of a Heavenly Voice. There are about forty occasions in the Babylonian Talmud when a Heavenly Voice was heard, and they comprise a wonderfully rich variety of episode and legend. A Heavenly Voice warns this one, rebukes that one, promises, commends, issues proclamations, and even assists in interpreting an obscure verse of the Bible. On one occasion, a Heavenly Voice brought the distant news that the Roman emperor Caligula had been slain and his decrees against the Temple annulled. This time, in order to reach the general population with the glad tidings, the Heavenly Voice deigned to speak in Aramaic.

The significant point about the numerous Heavenly Voice legends is that only three of them have anything to do with the law. All the others, charming and colorful as they may be, leave the law and the courts scrupulously alone. I have already presented one of the three exceptions, that is, the story of the attempted intervention on behalf of Rabbi Eliezer.

The second story shows the other side of the same coin. It seems that before the time of the classical rabbis, the men of the so-called Great Assembly were regarded as successors in the chain of tradition from Moses, and many religious institutions were deemed to have been founded by them. One day they were seated together considering who would and who would not have a portion in the world to come. They prepared an extensive list of those who would not have any such portion. We may imagine they took a keen pleasure in the process. Finally, without stopping to question the scope of their authority, they proposed to include King Solomon on the list of those who would have no portion in the future world.

At this point an apparition of his father, King David, appeared before them and prostrated itself, begging them not to add Solomon's name. This, however, they disregarded. Then a heavenly fire descended and its flames drew near and licked at the very seats of their chairs. This too they disregarded. Finally a Heavenly Voice cried out to them, saying that King Solomon had built God's house before he had built his own, that he had hastened to complete God's house in seven years and had taken thirteen years to build his own, and that

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he deserved to stand before kings in the world to come. Even to this they paid no heed. Whereupon even the divine patience was exhausted and the divine reason triumphed over human impudence. Paraphrasing the book of Job, the Heavenly Voice cried scornfully, "Should it be according to thy mind? It is he who will recompense it, whether thou refuse or whether thou choose!"

Well said, Heavenly Voice, and high time! As the episode of Rabbi Eliezer authenticates the freedom of human reason, this story presents an obverse moral, for it marks the outer limits of human powers and pretensions.

We come now to the third episode, the only remaining intervention by a Heavenly Voice in a legal setting that I have been able to find. To those who, unlike myself, are genuine Talmudic scholars, this instance is the most familiar. We are told that, at an early stage in the development of the traditional law, there were two distinct and separate schools of interpretation, the School of Shammai and the School of Hillel. It seems that for three years there was a dispute between the two schools, each group asserting that the law was in agreement with their views. Thereupon a Heavenly Voice announced, "Both are the words of the living God, but the law is in agreement with the rulings of the School of Hillel!" The later rabbis pondered, if "both are the words of the living God," how was it that the School of Hillel were entitled to have the law fixed in agreement with their rulings. They gave three reasons for this state of affairs. First, the men of the School of Hillel were kindly and modest; second, they studied not only their own rulings but also those of the School of Shammai; and third, they were humble enough to mention the deeds of the School of Shammai before mentioning their own.

I suppose that, in subsequent literature, no statement by a Heavenly Voice has been quoted oftener than "Both are the words of the living God." It announces a philosophy of bold and candid pluralism. Since human judgments at their best are destined to be incomplete and partial, two or more entirely disparate judgments of the same transaction may be equally rational and equally estimable. Nevertheless, as between two different and inevitably partial views, the view that has been informed with tolerance, modesty, and humility will generally prove truer, wiser, and altogether worthier. There is open pluralism here, at least on the intellectual level, yet it is a

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pluralism nourished by tolerance and humility on the religious level.

Thus if we combine and integrate the themes of the three episodes, we produce a rather impressive model of exchange and collaboration between religion and the law. The principles on which the model was built are: first, that man's mind ought to be independent; second, that man's will ought to acknowledge its proper limits; and third, that by the religious virtues of kindliness and humility, man can continually refine the quality of his judgments.

But these worthy principles were stated long ago in a distant land. Another thousand years must pass before Englishmen began to develop the common-law System which in turn provided the material of American legal institutions. Though the pattern of relation which we have seen in the Talmud may have been excellent, it exerted little or no influence on the current of thought in England and America. The Anglo-American attitude has been entirely different. It came from a different congeries of political, cultural, and religious developments. These developments began in ancient Palestine and continued through almost the entire Christian era in the Western world. To comprehend why the Talmudic pattern exercised so little influence and why the contemporary gap between law and religion constitutes an active threat to our society's future, we need to summarize this long, continuous movement.

II

Beginning at the time of Saint Paul and continuing in large part down to our own epoch, law and religion have been living what may be called the centuries of alienation. In many respects, the alienation was both unnecessary and factitious. If we consider the beginnings of organized society as reported by the anthropologists, we find religion and law so closely entwined in the lives of primitive groups that it is hard to determine whether they are two separate social activities or only different ways of looking at the same activity. If we shift our gaze to the other end of the scale and examine law and religion in the United States or any other mature community, we are bound to find an immense and pervasive overlap between the concerns of religion and the concerns of law. While there are some acts that religion either encourages or forbids and law considers outside its jurisdiction, and while there are other acts that law either encourages or forbids and religion considers irrelevant to itself, al-

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most all the primary events and relations in human life belong very properly within both jurisdictions. I mean matters like birth, family, sustenance, use of property, sharing of economic advantages, social harmony and peace, and the advent of death, whether from disease, accident, suicide, or murder. Law and religion have been habitually involved in each of these.

Intelligent men realize that religion is one of the supreme factors in human affairs. Intelligent jurists know that religious influences -whether good or pernicious-have continually affected the history and growth of the law. It is fair to say that a jurist who closes his mind to the role of religion in human affairs displays a serious defect of judgment, for how can he aspire to regulate political structure or prescribe social organization when he disregards one of mankind's greatest interests?

Suppose, instead of looking at the beginning through the eyes of the anthropologist or the current stage through the eyes of the modem jurist, we turn our attention to the experience recorded in the Bible; then, I think, we shall find overwhelming evidence of the overlap. The Bible, among other things, is a constitution of government-organized according to the old, established functions of legislative, judicial, and executive. Throughout the Bible, God is presented as the Supreme Legislator who makes the laws by which men ought to live; he is presented as the Supreme judge, deciding the conflicts and destinies of men and nations; and he is also presented as the Supreme Executive, who not only enforces his law by granting rewards and inflicting punishments but also exercises the ultimate prerogative of clemency, mercy, and pardon. In sum, according to the Bible, we might reasonably expect to find law and religion progressing together-at best in a harmonious co-operation, at worst in a sharp and enterprising competition for the allegiance of mankind. How then explain almost two millennia of alienation between law and religion in the Western world?

I suggest there have been four principal factors pushing the two apart. The first of these is creedal, and has to do with the implications of Pauline Christianity. Without repeating familiar themes of Church history, I need only recall that, from Paul to and including Augustine, one of the dominant currents in Christian thought consisted in denigrating the political state and secular law. Having heard Paul denounce the law of Moses as a burden which sin had

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put on men and Jesus had lifted away, many pious Christians considered the excesses and brutalities of the Roman empire and inferred quite understandably that Rome and its law were even more unfit for a Christian world. The Roman state could scarcely expect Christians to approve or admire it as long as it persecuted their religion and killed their saints. The statutes of the empire bore the marks of their pagan origin. Though in some respects the laws were wise, humane, and just, their sources were certainly not Christian. The best ethical influences in Roman law stemmed from the philosophy of the Stoics. Ultimately, the Stoic maxims would be given fresh labels and denominated Christian, but this adaptation had to wait until the blackguards and despots who ruled the Empire found it profitable to become converted and baptized. Meanwhile, detestation for the state and secular law had struck deep roots in the soil of Christian theology.

During the Middle Ages-some countries of the Western world have only recently emerged from the Middle Ages, and some have not yet completely emerged-religion was further alienated from secular law by the political factor. Though the Roman state was often brutal, it did maintain civic peace and order with unparalleled competence. By way of contrast, the ruling authorities of the Middle Ages, cruel as the worst of the Caesars, could not even preserve order in their own petty fiefs and territories. The Church rightly regarded most of them as ferocious gangsters, and the Church wrongly employed most of them as hired gangsters. The victims of the Inquisition were usually turned over to the secular arm for the execution of judgment. It was secular authorities who would be assigned the task of torturing, hanging, disembowelling, or burning at the stake. Though the law and its officials who attended to these chores were clearly convenient, they were nevertheless repulsive. Nor was distaste of the law confined to Roman Catholics. When the Reformation made its appearance on the European scene, some of the most dedicated and zealous sects among the Protestants completely disavowed allegiance to law and the state. In point of fact, while responsibility in the conduct of human relations has long since matured, sophisticated, and refined Roman Catholic attitudes toward the law, antinomianism still tends to distort the Protestant perspective.

The trend of modern political philosophy has supplemented and

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re-enforced these antinomian attitudes. On the level of theory, the secular state was amoralized progressively from Machiavelli to Hegel. On the level of action, the behavior of states in the twentieth century has often confirmed the very worst charges in antinomian literature.

During most of the centuries of alienation, the validity of law was attributed strictly to its imperative sources, that is, law was law because the emperor, king, or archduke had commanded it. If the king chose to act with and through a parliament, then the people would have an assortment of rulers instead of one. Either way, the law would emerge as an alien imperative-alien to the people in source, form, and interest. Usually it was not even in their language. This imperative view was characteristic of our early New England Puritanism and the puritanism (Protestant, Catholic, and Jewish) in our own times. The early American Puritans identified the law with God's command and assumed that virtue could be imposed by merely uttering decrees and punishing people who failed to obey. Only a generation ago, the prohibitionists made a similar error. So, in our own day, do the censors of books, plays, and movies. Such people seek to exploit the law after the fashion of the medieval Inquisition; while they are using it, they cannot help despising it.

The third factor of alienation is economic. Since the beginning of the nineteenth century, the Industrial Revolution has been confronting Western law with innumerable new problems: problems of the factory system, the organization of unions, picketing and boycotts, trusts and industrial combinations, the control of banking and fiscal policy, the preservation and social use of natural resources, and inventions of titanic destructive power. To these problems the law's response has been irregular and spotty, often clumsy, on occasion retrograde. I say "spotty" because at certain periods (the New Deal was an example) members of the legal profession have exhibited exceptional vision, insight, and democratic idealism. These endowments have never been shared by the majority of lawyers, or for that matter of any other profession. In general, it is fair to admit that most judges and lawyers do not display the remotest understanding of social change or ethical trends. If American law deserves well of us, it is because in every generation it has been preserved, advanced, and inspired by what the ancient prophets would have called "a saving remnant."

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But we should not expect laymen who suffer from outworn and unjust laws to take a long view while they fold their hands in pious resignation. Laborers, for example, who were prevented by law from organizing, striking, or picketing in the early days of this century, could not know that sooner or later some of Louis D. Brandeis' ideas would prevail. When social evils become acute, those who suffer them in patience may be strengthening the hand of the exploiter and oppressor. Consequently, many idealistic and religious Americans have always looked on the law as unforgivably slow in meeting social discontents. Some decades ago, they began speaking of "social lag" and "the lag in the law" to describe this state of tardiness. They were largely right, but their judgment was iconoclastic and rebellious rather than critical. It was easier to condemn the entire institution than to examine particular operations and decisions. It is still easier.

A fourth factor has alienated religion from the law. For purposes of politeness, we may call this one the institutional factor, but it will be quite a euphemism on our part, because what we are about to describe is really nothing else than the sum of three large and impressive ignorances. Add these three ignorances together and we have the total "institutional" factor.

Ignorance number one is the clergymen's ignorance of the law. Most clergymen do not know the law, and what one does not know one is likely to fear and distrust. Somehow, in almost every mature society, the lawyers seem to prosper in wealth and political authority. They are like Jack Horner, who pulls out a plum and joyously admires his own wisdom instead of the qualities of the pudding. On occasion this spectacle may affect a clergyman unpleasantly, yet it has long been the way of the Western world. In the beginning of modern times, Erasmus said, "With great unanimity the philosophers not that I would say such a thing myself-are wont to ridicule the law as an ass. Yet great matters and little matters alike are settled by the arbitrament of these asses. They gather goodly freeholds with broad acres, while the theologian, after poring over chestfuls of the great corpus of divinity, gnaws on bitter beans, at the same time manfully waging war against lice and fleas."

Ignorance number two is the lawyers' ignorance of the functioning of their own institution. The majority of American lawyers still cling to primitive legends and fables about the nature of the judicial

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process. Despite everything written by Holmes, Cardozo, and Jerome Frank, they choose to believe that rules of law are self-operative in an impersonal, mechanical fashion and that by some occult magnetism the circumstances of a dispute are automatically governed by the foreordained doctrine. Really, however convinced you and I may be that the world is not flat and that the personal factor is indispensable to decision and cannot be banished from the judicial process, there are countless lawyers who assume that if one does not mention the personal factor, it may become discouraged and go off and disappear somewhere.

Ignorance number three is the lawyers' ignorance of moral philosophy. When a successful and prominent lawyer is asked to discuss a moral issue of general application (not a mere question of professional ethics or etiquette), the audience is usually in for a severe trial-a trial by ordeal of tedium. He is almost sure to dispense the kind of copybook analysis we have learned to expect at bar association meetings. Notice and admire his truly miraculous complacency-no suspicion of the depth of his subject, no acquaintance with the profound variety of its literature, no trace of intellectual humility, not even an inkling that his glassy-eyed auditors are being martyred to the cause of good form! As they inhale the stream of platitudes, each member of the audience beseeches divine grace for himself and his neighbors-some heavenly gift of hardness of hearing, sudden deep sleep, or at least a temporary obtuseness of intellect.

The institutional factor deserves to be taken very seriously. There are reasons for hoping that, if we could overcome the clergymen's misunderstanding of law and the lawyer's misunderstanding of judicial process and moral philosophy, we should be able to cope satisfactorily with the creedal, political, and economic factors. Our first step is manifest: we must develop a reciprocal understanding that both divine law and human law are in constant process of growth, change, and emergence. Religion and law will remain distant from each other, distrustful, and alienated until men reach the point of knowing as thoroughly as they know their own physical existence, that both creation and revelation in the cosmos and in the law arc incomplete, ongoing, and continuous. Deprived as they are of the light of this knowledge, law and religion stand rigidly apart, and the gulf between them grows ominously wider.

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III

Because of this gulf, religion is approaching and soon must confront a great and unnoticed crisis. At least in America and probably in most other parts of the Western world, religion has been entering an unnoticed crisis which appears to increase rapidly in scope and intensity. What is it that marks the crisis? The fact that for the first time in the general course of Western history since the advent of Christianity, law often equals and occasionally surpasses religion in the quality of its announced faith and practical works. If the trend is as I see it, that is, if the ethical and humanitarian implications of law have really begun to rival the messages and preachings of religion, then religion is indeed facing a challenge which makes its nineteenth-century anxiety about Darwinism and evolution seem relatively trivial.

The present trend may constitute a threat not only to the future of organized religion but likewise to law and the administration of justice. This anyone will understand who considers how much Roman law gained from Stoic-Christian influences or how much what we now call "equity" derived from the infiltration of Roman and Christian standards during the English Renaissance. In a democratic society like ours, law is tethered to the opinions and moral standards of the general public, and if religion fails to lead and edify these, the advancement of law will inevitably suffer.

What does the lawyer hear when he listens hopefully for the voice of religion? In answer to his concern for a national and international society of freedom, justice, and fraternity, he hears very little that he could not have heard a century ago. When he aspires to bring harmony and understanding between man and man and group and group, he often finds the teachers and textbooks of religious and private schools cancelling his efforts by erecting barriers in the minds of the young. He sees the Supreme Court endeavoring continually to elevate the legal plane of human dignity and he sees most of the Churches and synagogues complacently content to vouch for theological and ethical notions that would cause embarrassment if they were expressed and taken seriously in a secular setting.

Let me give an example which, since correction-like charity- begins at home, will have a strictly Jewish reference, for I know that sincere Christians will have no difficulty finding examples appropri-

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ate to their Churches. In the early cultural background of the age when the people of Israel made their exodus from Egypt, they believed that God had slain all the first-born children of the Egyptians and even the first-born of the Egyptian cattle. Though it is entirely understandable that in their day they should have believed this thing, how can we continue to believe or teach it in the middle of the twentieth century? It is high time we refused. Surely this is not a matter of appeasing the villainous Mr. Nasser; it is not exclusively a matter of considering the sensibility of modern Egyptians -though I must say that if I were an Egyptian, I should find it hard to understand how a religious and reverent people could recite this part of the traditional story every year in the Passover ceremony (see Deut.23:7-8). The paramount reason for denying that God slew the first-born of the Egyptians and of their cattle is simply that we have passed the stage when we can accept such thoughts concerning God. I concede that, owing to poor hygienic conditions and similar causes, the rate of infant mortality in Egypt may have been high in those ancient days; for that matter, the Israelite children may have been better protected and thus escaped the plague; be that as it may, there is not the slightest doubt that the children who died and the children who escaped were of equal concern to their divine Father. As the instance illustrates, religion may impair whatever influence and meaning it still possesses in American society unless its leaders recognize a continuous demand for revaluation and progressive revelation.

Now, let me recall just a few of the many ethical and humanitarian issues with which the law has been struggling during recent years, in order to sketch the extent of the crisis and the dimensions of religious default. I begin with the most obvious example, that is, the whole complex and ramified problem of race relations in the United States. For twenty years or more, the courts, legislators, and executives have been advancing and supporting Negro rights to equality. Of course, they have not done nearly enough; not always have they done everything feasible under the circumstances; and deeply grievous wrongs remain to be righted. But whether we look at public school education, university education, transportation, economic opportunity and employment, or public housing, we find vast and accelerating movements toward equality and justice. In these ements, the Churches have furnished little or no leadership.

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Though the Roman Catholic Church possesses the best interracial record of major denominations, it did not anticipate but followed the advance thrusts made by secular authority. Generally speaking, Southern Protestants and Southern Jews who favor desegregation can scarcely look to their ministers and rabbis for aid and direction. Thus, by and large, a noble movement which ought to show the white population bearing the banner of Judaeo-Christian ideals, exhibits those ideals mainly in the forbearance and self-discipline of the Negroes.

For my second example, let me take the issues that rise under the First Amendment in the Bill of Rights. These are issues involving free speech, free association, free inquiry, and free communication. Behind the constitutional guarantees, there are certain magnanimous postulates about the capacities of man and the integrity of his inner being. The Supreme Court has been endeavoring to preserve these postulates during a period of unprecedented international tension and discreditable domestic hysteria. Here again, the law has performed its work imperfectly, and the eventual outcome cannot be predicted with confidence. In many aspects, intellectual freedom is still at bay, still in jeopardy. Nevertheless, if freedom retains a foothold today from which to move forward, how much of this can be attributed to the influence of organized religion? Amid the noise and clamor of shameful McCarthyism, there were probably fewer ecclesiastics on the side of freedom than on the side of obscurantism and repression. Yet is not man's liberty to think, to investigate, and to dissent one of religion's most central and fundamental concerns? The Jewish prophets and the Christian martyrs believed it was.

Likewise, the justices of the Supreme Court have done something, though not nearly enough, toward restricting the scope of so-called "guilt by association." The charges of guilt by association could have been expected to awaken the oldest of Christian memories, for Jesus himself had been attacked for associating with sinners (as though there were ever anyone else to associate with). Moreover, at least since the time of the prophet Ezekiel, guilt by association had been challenged by ethical Judaism.

Let me carry the process a step farther. Both Judaism and Christianity have always taught that sincere repentance reduces or cancels the burden of transgression, that God is merciful and pardons abundantly, and that good Jews and Christians ought to follow the divine

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example and at least avoid actions of spite and vengeance. In the face of these gentle and humane teachings, there was no protest from the majority of re igious voices when fathers of families who had lived in America for as long as twenty-five years and had given sons to its armed forces were taken from their homes and ordered deported to foreign lands because, forsooth, in their juvenile days during the1920's they had briefly been members of the then-legal Communist Party. Who can doubt that a large volume of protests from religious sources would have stopped the deportations and caused Congress to alter the deportation statute? Dissenting when the Supreme Court permitted deportations of the kind, justices Hugo L. Black and William O. Douglas showed they understood the demands of a genuine religious approach; so in their respective lifetimes had justice Frank Murphy and justice Louis D. Brandeis.

For a final illustration of the vacuum which religious inertia has left in our communal life and which the law, under secular proddings, is endeavoring to fill, there is that national infamy of ours called "capital punishment." Almost two millennia ago, the most enlightened Jewish rabbis stated their absolute opposition to the death penalty. At about the same time, Christian opposition was admirably ardent. For when the state takes human life, it violates the most excellent ethical ideals of the Western world, it brutalizes the spirits of the citizens, and it presumes to act irrevocably and irremediably, which is prohibited to it by the inherent fallibility of earthly judgments. The infliction of capital punishment is the typical instance of hybris or overweening arrogance in our society. Yet-need I remind you?-only a minority of religious leaders have dedicated themselves to the abolition of this uncivilized and antireligious practice. Though, in England, after endless efforts the death penalty has been almost abolished, we know that the heads of the established Church did much to resist and retard the achievement. In the United States, we might have wiped the barbaric laws from our statute books long ago, if Christians and Jews in the twentieth century had not sunk below the ethical plane of Saints Ambrose and Augustine and Rabbis Tarfon and Akiba.

Sooner or later the cause of abolition will prevail in every country that dares call itself civilized. That is not the question; the question is whether religion will gird itself with its ancient power and hasten the day of humaneness and compassion. We are given no

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clear answer to this question. All we can say under present circumstances is that we see religion losing its status as conscience's helpmate and becoming a mere thing of rhetoric and ceremony, a background for weddings when the spirit is too happy for intellection, and for funerals when mind and social conscience are benumbed with grief. Such a religion would be prosperous, paunchy, popular -and inconsequential.

Meanwhile, under pressure of society's daily needs, secular law is beginning to fill the ethical vacuum. It is a dangerous function to leave entirely in the hands of legislators and judges, for if they need religion for no other purpose, they always need it to instruct them in the ways of humility, clemency, and compassion.

Yet there is considerably more at stake. Even if our legislators and judges were able to develop the wisest and most expedient corpus of law, they could not make it suitable to the infinitely varied circumstances of particular cases unless they perceived and acknowledged that a human being is not only a member of the species entitled as such to equal treatment but also a unique individual endowed by birth and environment with attributes that belong exclusively to him. Without its generic quality, law becomes unjust because it is unequal; without its individual quality, law becomes unjust because it is mechanical and insensitive.

Here then is how a genuine effulgence of faith might illumine the road of the law. From ancient times, religion has exalted the value of individual personality and has summoned men to understand their neighbors as nearly as possible after the manner of God's understanding, for-we are told-in his eyes all men, created in his image, are equal and alike, yet every man is distinct, unique, and filled with the splendor of human dignity. This is religion's own insight. Applied wholeheartedly in the law, it could help us shape decisions of individualized and creative justice. Applied throughout our national life, it could hallow the pursuit of a free, righteous, and compassionate society.