As his classmate and friend since our first year in law school more than forty years ago, I have admired John Noonan for his gentle personality, his keen intellect, and his strength of character. He is an exemplar of ethical conduct, as a person and as a judge.

Judge Noonan presented a significant part of his philosophy of law, lawyers, and judges in his Holmes Lecture at Harvard Law School in 1972. The lecture was later published as a book, Persons and Masks of the Law, and it stands as one of the most significant essays that has been written about the legal profession.

In Persons and Masks of the Law, Judge Noonan warns of the tendency of lawyers and judges to make a Golden Calf of abstract rules of law. He states, “Fascination with rules may mean obeisance to force or the delusion of having mastered force. It may also lead to a veritably religious veneration for the rules and their imagined author. The sovereign and his command may be deified.” When this scenario occurs, the rules become masks that disguise the humanity of those affected by the law. The effect of this occurrence is to permit lawyers and judges to engage more readily in conduct that is injurious to other persons—conduct that they would otherwise recognize as evil.

Once, when my husband, Roy Herron, and I were students in Vanderbilt University's joint divinity and law program, he traveled to New York City. On the plane, he met two of our professors, Robert Belton from the law school and Kelly Miller Smith from the divinity school; and the three men decided to share a cab from LaGuardia.

As they rode to their hotels, with Roy in the middle, law professor Belton pointed to himself and announced, “Here we have pure law.” Pointing to Professor Smith, he added, “And here we have pure theology.” Then, pointing to joint divinity-law student Roy Herron he asked, “But what do we have here in the middle?”

Divinity professor and Baptist preacher Kelly Miller Smith replied, in his great booming voice: “I fear … we have … POLLUTION!”

Some would say pollution is a charitable characterization for those who mix theology and law. During five years in Vanderbilt's joint divinity/law program, someone said to me almost daily: “Law and divinity, aren't those contradictory?” That question was often followed by a clever quip like, “What do you do, marry people and then divorce them?” Although I almost always laughed as I responded, I remember one early morning in the Vanderbilt Law Library, before my first cup of coffee, when I did not. A fellow law student, a member of the Christian Legal Society, said: “Law and divinity, aren't those contradictory?” I demanded, “Then why are you in law school? If you really think you can't be a Christian and a lawyer, then you should drop out this very day.”

John Noonan was my teacher some twenty-five and more years ago. I was then a graduate student at the University of California, trying to discover enough about the history of the law of the Church to write something sensible about it. He took me under his wing. He suggested a subject, and he taught me—at least he showed me—the possibility of seeing larger themes in the details of legal and historical research. Attention to the details was essential, but no less important was thinking about their background and their implications. It was a lesson I might have learned in law school. Apparently I had not. This lesson came back to me forcefully when, in more recent days, research on the development of ecclesiastical jurisdiction in England raised the subject of the place of excommunication in the subject's early history. Excommunication, dealing as it does with the complex interrelationships between legal doctrine and human behavior, is a subject about which Judge Noonan might have written a wonderful book.

Reverend Professor Donald MacLeod - Supporting Witness (Professor of Systematic Theology, Free Church College, Edinburgh)

Sulian Stone Eagle Herney - Supporting Witness (Mi'Kmaq First Nation People, Nova Scotia, Canada)

This inquiry precognition (evidence) is submitted to The Scottish Office Inquiry Reporters Unit, 9th September 1994, in accordance with letter Ref. P/PP/75/W/4 of 19 July 1994: Town and Country Planning (Scotland) Act 1972 - Application by Redland Aggregates Limited to Develop a Coastal Quarry at Lingerabay, South Harris.

In June of 1995, the Chief Reporter for the Secretary of State for Scotland, Miss Gillian Pain, completed a Public Inquiry for an application for a coastal superquarry on the Western Isles of Scotland. The company, Redland Aggregates Limited, proposed to extract and transport by sea upward of five million and less than 12 million tons of rock a year. The rock, a feldspar called anorthosite, would be sold as road aggregate throughout Europe. At a national level, the proposal became the Scottish test case for Agenda 21, the blueprint for sustainable development arising from the UN Conference on Environment and Development in Rio in June of 1992. At a local level, this Public Inquiry highlighted and defined community concerns about the development, of which religion was primary. The significance of the religious dimension of the superquarry debate extended from the local to the national and international spheres.

To place the testimonies presented by Mr. Mcintosh, Professor MacLeod, and Chief Sulian Stone Eagle Herney in perspective, it is necessary to understand the role religion plays in daily life on Harris and in the superquarry proposal process. On first appearance, a proposal for one of the world's largest coastal superquarries seems devoid of any religious implications. However, much of the local debate before and during the Inquiry revolved around religious and theological issues. In the constitutional monarchy of Great Britain, where the separation of church and state is inconceivable, the Western Isles of Scotland stand out as a place where religion is still one of the most fundamental guides to policy decision-making. The people of Harris share with the Mi'kmaq of Canada a set of expectations about the role of religion in politics.

A people's laws are deeply imbedded in its culture. They embody its collective moral reflection, its common understanding of the terms on which human beings are to live together, its customs, its historical experience, and its aspirations for the future. It is perhaps to be expected that Americans should enshrine their constitutional documents, build courthouses like temples, deploy their laws with ruthless practicality, and not take kindly to the suggestion that their laws are less practical than they think. Or that Italians should maintain a legal system like an old palazzo, with imposing staircases you can lose your breath climbing, bizarre opening hours, a wing or two closed for restoration, and a few kindly people who will sometimes show you where the elevator or the back door is hidden.

It is the cultural range of the subject matter that makes the study of jurisprudence interesting. There are philosophies of law, some good, some bad, some indifferent, but philosophy does not exhaust the subject of jurisprudence, because major jurisprudential questions (for example, what is a corporation) are not philosophical. There are theologies of law also, but they do not exhaust the subject either. As Christopher St. Germain had a sixteenth century theologian point out to a law student, the law of God is not concerned with land titles. Granted, it would be possible to distribute land titles in such a way as to offend the law of God, but the point stands nevertheless. It would also be possible to build a theologically unacceptable house (say a firetrap), but that does not make architecture a branch of theology.

The manuscript transmission of the so-called Stroma of Rolandus, considered to be the second-oldest Summa on Gratian, is so complex and diversified that one ought to ask whether it really constitutes a single work. The present writer as a young man followed Thaner, Schulte, and others in his Repertorium der Kanonistik, without even asking the question. In the present Note he sets out to answer it in the negative.

C.1-C.36 of the work is transmitted without Part I, which only MS Stuttgart HB VI.63, fos. 1-34, combines with the other parts. We have C.1-C.26 in nine manuscripts, without counting the Cambridge fragment, University Library addition 3321 (on C.1-C.4 q.3, C.13-C.23) and the Zürich manuscript (see below), but with a new manuscript added in Liège, Grand-Séminaire 6.N.15, fos.147r-178r, and a new fragment in Heiligenkreuz 44. MS Zürich, Zentralbibliothek (Stadtbibliothek) C.97 is a different work, the Summa Turicensis. C.27-C.36 is given a title of its own, De coniugio, in all but two manuscripts. It is transmitted by itself in Berlin lat. 462, Bologna, Archiginnasio A.48, Grenoble 627, and divided from the relatively short Summae on C.1-C.26, which follow it in London, British Library MS 11.B.ii and Worcester, Cathedral Chapter, Q.70 (in Worcester, these Summae are incomplete and end at C.19 q.1).

It is a pleasure and an honor to be asked to contribute to a festschrift dedicated to that fountain of youth, energy, and excellence, John Noonan, who has been a close friend and a professional colleague for forty years. John has written about many of the legal topics that are closest to my own heart and I have chosen to include in this volume a piece that combines many of our joint interests: legal history, the Cardozo family, and judicial ethics. Judge Noonan has in fact alluded quite specifically in two of his own pieces to the career that figures in my contribution. My subject is Cardozo, not the twentieth-century Benjamin of high repute featured in Judge Noonan's Persons and Masks of the Law, but his father, the nineteenth-century Albert of low repute, whose career figures in Judge Noonan's exhaustive treatise on Bribes. The legal career and the approach of the nineteenth century Cardozo to law is an interesting and instructive prelude to the more common study of the contribution of the twentieth century Cardozo.

The ancient Greeks never speak of themselves as “polytheistic,” of their religion as “polytheism.” Certainly, thinkers comparing various world-views must have given a place to this one early on. Sextus Empiricus, ca. A.D. 200, notes that, if one looks around, some people assume one god, hena theon, some many, pollous; such an observation could probably have been made hundreds of years before. Yet from here to the labels “polytheistic” and “polytheism” is a big step. They are met in no text B.C. It is Philo, outsider and critic, who first employs them.

The ground was prepared in that the adjective was current long before, though not descriptive of a creed. Significantly, the noun is not traceable earlier at all, nor the nominal use of the adjective, what we translate as “a polytheist.” Here is the passage with the adjective from Aeschylus. The daughters of Danaus flee from Egypt to Greece with their father in order not to be forced into marriage by their cousins. Expecting the latter to pursue them, they take refuge at the sanctuary of Argos, favoured—the father explains—by quite a few of the mightiest Olympians; and they implore the king not to let them be dragged from this “many-godded seat.” Even for Lucian, Philo's junior by over a century, the adjective has much the same meaning and, of course, there is no noun.

“As God is one,” Newman says, “so the impression which He gives us of Himself is one.” It is an impression of presence, of “I am with you,” of companionship on the journey of life. It is the impression we have when something touches the deep loneliness in us, when “heart speaks to heart,” as Newman says, when music is “from the heart,” as Beethoven says, “may it go to the heart.” Then it seems we are not alone. Then it seems God is with us. Our life is a journey in time and God is our companion on the way.

There are times, though when the impression of presence is not there, when it seems therefore God is not there. We go through something we didn't think God would allow, a testing of the heart, the kind of thing we pray against, “And lead us not into temptation, but deliver us from evil.” Then it can seem we have encountered another side of God, a side turned away from us like the other side of the moon. If we hold to God nonetheless, we come to realize it is not another side of God we are experiencing so much as the essential ordeal of a journey with God. Every journey has its ordeal, according to storytelling, an ordeal by fire, by water, by sheer endurance, and a journey with God has its ordeal too, the ordeal of the human heart, the trial where the secrets of the heart are revealed. If I come upon that ordeal, I may find that my heart is divided, that it is not entirely with God. Still, I do not thereby fail the test. For I can bring my divided heart to God to be made whole. I can bring all my heart to God, although it is a heart in pieces, a broken heart.

Our world is in abundance of most different kinds of legal systems, but none of them is as thoroughly imbued with constitutional ideas and categories as the American law. Thus, the dedication of an article dealing with a concept of constitutional law to an American judge and scholar seems not inappropriate. The contribution focuses on a legal term of specifically continental European thinking, the concept of “Wirtschaftsverfassung” or, translated literally, of “economic constitution.” I will try to explain on which premises and under which circumstances this legal term has been developed during the first decades of our century.

Concepts often share the fate of human thoughts in general: they appear for the first time in certain contexts, they journey through time and space, they flourish in one place and sink in another; for long periods they may be missing yet they come to life again all of a sudden in a new context. The concept of the economic constitution is such a case, too. It can be found already in the Physiocrats, but no fixed place is assigned to it; every now and then it has been used by authors of the 19th century but without any chance of gaining a foothold; in our century, however, it secures the status of a central concept for legal doctrine and theory of constitution, at least among the German jurists. So, unlike many other juridical concepts, this one does not root in a common European heritage like ancient Roman law or the law of the medieval Church; and with regard to the political and juridical ideas of the Natural Law School and the Enlightenment the continuities are so sparse and faint that it is hardly possible to trace the lines back over the centuries.

I met John Noonan in the office of the late David W. Louisell in January, 1974, and remember to this day just how awestruck I was at being in the company of such great scholars. I find myself even more humbled as I pen this essay in honor of the birthday of my esteemed teacher, advisor, and friend. To be invited to join the festschrift is an extraordinary honor for a former student but it is also an immense challenge. The task of writing a coherent essay for one's professor usually ends upon graduation from law school. To write one in honor of a professor (and a favorite one at that) is an altogether new experience.

Because I write to pay tribute to a man whose manner of thinking has indelibly shaped the manner in which I teach my own students, my goal is to write an essay that builds upon the work he has done in the field of law and religion. And if, in the final analysis, it meets that standard, it will do so, in part, because of John Noonan's efforts as a teacher, scholar and role model.

The first thing I thought when I finished reading Stephen Carter's recent book, The Culture of Disbelief, was: This guy needs to get out of New Haven more often. Anybody who believes that America does not take religion seriously cannot possibly be looking at all of America.

When I look at America, I apparently see a very different culture from the one Carter identifies. The divergence in our perceptions is not merely an empirical disagreement; rather, this divergence in fact masks a basic doctrinal difference. I am suggesting, in other words, that it is because we have such different views of legal doctrine that we perceive the place of religion in our society so differently.

This is a legal essay, however. Its subject is thus primarily the doctrinal issues; these issues occupy Parts 3 through 6 below (and, to a lesser extent, Part 2). I argue that American culture is like a religion, with its own texts, its own authorities, and its own values. One of these values is that other religions must remain in their own sphere. While my focus here is legal doctrine, insofar as it is accurate to maintain that doctrinal differences in the realm of religion and the law can significantly drive divergent perceptions of religious reality, then it may be useful to underscore Carter's own view of reality as well as my rather different perception; such an underscoring is the objective of Parts 1 and 2.