466 - The Trial of Jesus: A Legal Response

The Trial of Jesus: A Legal Response
By James E. Wallace

FR. THOMAS F. O'MEARA, in the preceding article, "The Trial of Jesus and Christian Dissent," is to be applauded for setting the trial of Jesus in the context of God's action concerning man's laws. The insight that the trial of Jesus was in fact a trial of human legal processes and the implications of this judgment for action need continual explication and proclamation. Toward this goal and in order for O'Meara's "theologico-political view of the trial of Jesus … [to] become a lasting dynamic by which we evaluate in the United States law and order, crime and punishment," some consideration needs to be given to the contemporary context of our legal processes and the problems of judgment by dissent.

O'Meara introduces his thesis by characterizing our age as one of political trials." And he pleads that "we must not let political trials become criminal trials or . . . allow the raison d'être of a political trial-public proclamation of dissent-to be snuffed out by exaggerated criminal charges." Here is the rub. This argument suggests a divorce of political trials from criminal trials and perhaps a new forum for dissent. Yet the phenomenon which, according to O'Meara, marks this age is the criminal trial which has become the so-called "political trial." Indeed the paradigm of Jesus' trial is of a man charged with committing a crime against the society in which he lived, and which provides the context for political and theological dissent. Jesus' trial was a "political trial" as O'Meara points out.

This diffusion of lines between political and criminal trials serves to illustrate that the term "political trial" is very elusive and perhaps inadequate to differentiate trials of legitimate dissent from other trials in our legal system. Indeed, in a sense, all trials on criminal charges are political in that the body politic, by means of its legal system, seeks to judge the conduct of one of its members. The roles

James E. Wallace is a member of the faculty of the College of Law at the University of Denver. In addition to his law degree, he also holds a doctorate in sociology and religion from Princeton Theological Seminary. He is Executive Officer of the Law and Society Association.

467 - The Trial of Jesus: A Legal Response

of accused and accuser are defined within certain norms designed to protect the rights of the individual against the power of the larger body politic. These norms include the presumption of innocence until proven guilty, the burden of the accuser to prove his case beyond a reasonable doubt, the right of the accused to be accorded due process, and in certain circumstances his right to a speedy trial before his peers. By these norms, one charged with committing a crime is in the position of charging (accusing?) his prosecutors to prove the commission of an act by the accused which is not legal within our scheme of legality. The person charged with committing a crime cries, "Not guilty! You are wrong! Prove it!" At the same time that he is being accused, he is protesting his innocence. The trial then becomes an arena for advocacy in which issues of fact and law are joined in order to resolve the conflict in positions. Thus the attempt to differentiate as "political" those trials in which the accused becomes the accuser, as O'Meara does, may be nothing more than a neat handle for purposes of argument and of little help in distinguishing the political from non-political trial. Too often the term "political trial" is a convenient means of singling out particular trials for purposes of example in order to demonstrate the fact of dissent within the legal system, which leads to a second and more critical point.

The category "political trial" may be after the fact to recognize that someone, in a particular trial, decided to politicize that trial and to use a forum of the legal system, namely the courtroom, to espouse, defend proclaim, dissent, and protest certain political views. Such a trial could also be the occasion for public disavowal of the American legal system as a system of justice which a person need either recognize or respect. O'Meara argues for a paradigm for such based upon the trial of Jesus.

It is at this point that the paradigm may be subject to strain mainly because the trial of Jesus differs substantially from the contemporary American legal scene, thereby suggesting caution in comparisons.

It must be recalled that the Sanhedrin, before which Jesus was brought for his first trial, was a political body. It was the highest assembly of the Jewish nation for the government of the people. It was both a legislative and a judicial body. As a consequence, political dissent was legitimate in its proceedings. At least the design

468 - The Trial of Jesus: A Legal Response

of the political-legal system of the Jewish nation in Jesus' time provided for the conjoining of law and politics in a single matter. In contrast, separation of legal and political power is fundamental to the design of the American system of doing things. Thus when one accused of committing a crime, or when that person's accuser, seeks to use the legal system to raise political issues, great distortion of the system and tension are the result. No longer do the accepted norms for the legal system seem to fit, in part because the politicizer proclaims that he is not bound by them. The rules of the game are adhered to by only one party to the legal matter, which causes disarray in the proceedings. The safeguards which have been developed over time whereby the true facts are sought and the law tested and applied to those facts no longer function, and the trial easily is reduced to bedlam.

These safeguards are many, and, although subject to abuse as is any human institution, they afford a means by which justice can be actualized. For example, the trial of the Chicago Eight is now the trial of the Chicago Seven. A mistrial was declared in Bobby Seale's case, and quietly the charges against him have gone into limbo. In addition, there is support for the proposition, perhaps not quotable, that a trial of the Chicago Seven conducted more within the recognized limits of advocacy would have resulted in the acquittal of those defendants. Although such a "what if" argument is incapable of empirical demonstration, it is at least a reminder that the legal system has certain limits to what can be accomplished within its design, and that its misuse may be its abuse. The use of the courtroom for purposes of political dissent is a use not contemplated within the framework of the legal system. This does not mean that political goals are outside the reach of the legal system. It does mean that some forms of dissent are not viable options within the system.

All of which raises the more fundamental question dealt with by O'Meara, namely, how do we keep the American legal system just? Law and order are not the issue. Law and justice are, and O'Meara reminds us that Jesus, in his trial, said something about justice. Indeed, that trial was a judgment about human systems of justice which crucify God's love in human form.

The norms of justice which were accepted during the latter nineteenth and early twentieth centuries are no longer totally acceptable. The agony of the present times is, in part, in the search for a norm for

469 - The Trial of Jesus: A Legal Response

legitimate dissent against not only the legal system, but political, administrative, executive, and religious systems which denigrate man and reduce him to less than he is or can become. The norm of the gospel, which is the message of Christ entrusted to the church, should speak to this issue. The proclamation of a norm for legitimate dissent from a Christian perspective against the injustice of our laws and the manner in which we apply and administer them through the legal system is an opportunity for the church. More particularly, as O'Meara argues, the birth, life, trial, conviction, and crucifixion of God's love should speak to us in our quest for justice and its actualization in human legal systems. And, of course, the hard question is the specific one-what do these facts say to the particular participants who are engaged in a particular courtroom with a particular law in the process of meting out justice.