When the federal court declared Arkansas' “equal time” statute (requiring that public school science teachers present both creation and evolution “theories” in the classroom) unconstitutional, many citizens concerned with “keeping religion out of the schools” were relieved. A second look at that controversy, the parties involved, and the court's opinion, however, reveals an unsettled atmosphere. For a great many Americans in the Protestant evangelical tradition, the Arkansas experience was only the first round of a long legal fight, the opening battle of a war of worldviews. The matter is far from settled, not only because of similar “equal time” laws now being drafted, passed, or challenged, but because the advocates of such legislation have learned from the Arkansas failure: the earlier bill was not carefully worded, their position was not properly presented, and the trial judge was allegedly biased. The battleground has moved of late to Louisiana, where a new version of creation-science legislation is being attacked and defended, but McLean v. Arkansas Board of Education remains as the most recent full trial in the controversy.

“It is my opinion,” testified the chairman of the Hopi Indian Tribal Council in the unsuccessful effort of the Hopi (and the Navajo) to stop further development of a ski resort on U.S. Forest Service land in the San Francisco Peaks in North Central Arizona,

With such high stakes involved it is little wonder that the Hopi Indian Tribe resorted to the courts. Yet, such a step is a high risk venture. The immediate costs in terms of time, money, and emotional involvement are likely to be high. Further, every such investment involves the possibility of loss of the case and with it the additional possibility that the decisive language of the court may find its way into opinions in similar cases. Most importantly, perhaps, an attempt to defend a tribal religion in court could involve subtle longer range costs. Paradoxically, an effort to defend tribal religion may also undermine it.

Judges are seldom content merely to annul the particular solution before them; they do not, indeed, they may not, say that taking all things into consideration, the legislators' solution is too strong for the judicial stomach. On the contrary they wrap up their veto in a protective veil of adjectives such as ‘arbitrary,’ ‘artificial,’ ‘normal,’ ‘reasonable,’ ‘inherent,’ ‘fundamental,’ or ‘essential,’ whose office usually, though quite innocently, is to disguise what they are doing and impute it to a derivation far more impressive than their personal preferences, which are all that in fact lie behind the decision.

John Calvin's (1509-64) theology, as expounded in his definitive work, the Institutes of the Christian Religion, and in his topical theological treatises, biblical commentaries and sermons, may be accurately described as a lifelong meditation on the law of God. And, as was true for the Psalmist David (Psalm 119), his meditation is characterized by delight, praise, and thanksgiving for the law, in all its various forms and uses; as a blessing, a gift of a gracious God solicitous of the welfare of his chosen people.

In order to teach this positive view of the law properly and to evoke a similar response of appreciation for the law from Christians, Calvin attempts in his theology to present “the whole doctrine of the law” or “the whole office of the law.” He takes care, therefore, to avoid some of the more common partial theological interpretations of the law of his day. Specifically, in his theology he strives: not to place inordinate emphasis on the negative, punitive function of the law, as Luther was prone to do; not to ignore the punitive function of the moral law, as the “papists” were wont to do; not to reject the benefits of civil law, as the Anabaptists tended to do; and finally, not to reject the law altogether, as the Libertines did. In response he carefully constructs a balanced and nuanced view of the law that incorporates a variety of forms and a variety of uses (both negative and positive) of the law. The following presentation of his understanding of the law in relation to creation, sin, justification, and sanctification is an attempt to summarize that complex position.

Thomas Shaffer once observed: “[I]t is better to bear the discomfort of trying to be a [believer] and a lawyer at the same time than it is to pretend that the symbols of faith have nothing to do with law offices, law schools, or courts.”

I am among the many who have been instructed and moved by Professor Shaffer's example and am, therefore, among those who know something of the contagious discomfort of being a believer and a lawyer at the same time. It is a condition out of keeping with the times. But those whose vocation is faithfulness at the same time that their profession is law or politics have no choice. “Divine discontent” it is sometimes called.

I make no claim for my remarks except that they arise out of this discomfort. Specifically, I am troubled by American law's systemic injustice—i.e., its capacity for victimization, its fallenness. My way of responding to the discomfort, of trying to do something about it, is the act of rethinking which Karl Barth described as “the ‘primary’ ethical action.” The “transformation of thought,” he said, “is the key to the problem of ethics, for it is the place where the turning about takes place by which men are directed to a new behavior.”

Professor Milner S. Ball extends an invitation to creativity. His essay offers a provocative new way to think about law. He examines neither specific codes and pronouncements nor traditional theories of jurisprudence. Ball instead takes a radically new tack in directing our attention to the much broader ways in which our society conceptualizes and expresses law. Carefully avoiding the use of definite and indefinite articles with the word “law,” he suggests that law possesses a far more powerful essence than simply functional or utilitarian qualities. Within the context of his metaphorical thinking, law becomes an all-pervasive experience which embodies and reflects our experiences and assumptions. If one takes Ball's suggestion seriously, which I do, that metaphors are “a fundamental mode of understanding and experience,” then the task in part becomes to expose the substance of such an understanding and experience.

There is a metaphorical reciprocity between theology and law. In brief, and in sum, let me begin in this way in grateful acknowledgment of Professor Ball's probing and provocative, fascinating, and instructive analysis, which sets out from the other pole of this reciprocity. At times, his search for an alternative to the dominant metaphor for law leaves the reader in some bewilderment and tempted to take cover in that salutary squib, offered from time to time by The New Yorker under the caption: “Block that metaphor!” As though anticipating that rude and facile exit from the search, Professor Ball is careful to provide an awesome and safer harbor in the paradigmatic law of the sea. This paradigm conceals both the alternative sought for and the unexpectedly promising expectation that—as things penultimate express and make room for things ultimate—the exciting prospect is that the lion and the calf do lie down together. “For the Lamb in the midst of the throne will be their shepherd, and he will guide them to springs of living water;… and there will be no more sea” (Isaiah 11:6-9; Revelation 7:17, 21:1). Even Woody Allen will be able to join the calf and the lion in the exchange of sleepless nights for waking and sleeping amidst the peace which passes all understanding (Philemon 4:7).

Milner Ball's essay, and all of his work, ring with hope; that is, both with his clear-sighted, scholar's interest in finding and telling the truth, and with the optimism that comes of his belief that chaos has been overcome. His thought is an inspiration; and his lyrical prose is, for all of its somber truth, a joy to read.

In the spirit he brings to his work, I suggest that the Hebraic religious tradition contains a richer theological basis for the claim that law is a medium (or, perhaps more modestly, a conversation) than he seems to allow for; and I suggest that there is perhaps more hope to be found in human relationships in a lawyer's professional life than there is in the institutional forms provided by the government—more in the law office than in the administrative apparatus that Professor Ball prefers to invoke for examples of medium.

With those suggestions out of the way, I want to argue that Professor Ball's characterization of property ownership as “the apparatus of bulwark law” is premature. I want to suggest that the bulwark-like difficulties in property law are less the essence of ownership than a perversion of ownership.

I begin this too-brief response to Milner Ball's exciting lecture with my favorite metaphor. From W. H. Auden's concluding chorus in “For the Time Being”:

Spending the 7th to the 9th of November on the campus of Washington and Lee University in colloquium on the theology of law (my notion of what it was all about), was a “unique adventure.” I owe both Professors Ball and Shaffer, as well as our colleagues in the colloquium, a great thanks for “redeeming my life from the ordinary,” during those unique days.

My hope would be that Prof. Ball's lecture and his subsequent completed and published work may set off the kind of external dialogue and internal growth in other lawyers and politicians as it did in me. I hope that many will argue at length whether law is basically a medium or a bulwark, but there is no argument that the work of Milner Ball is a catalyst of conversation much needed by the inert solutions of today's legal profession.

Theologians, law professors, and scholars are responding to Milner Ball's work. I, however, am only a country lawyer and preacher, a practitioner who strays each spring into the academy to teach and to learn.

Professor Ball graciously leaves a place for my kind, though. He observes that you cannot work out the law you conceive in an ethical vacuum any more than you can conceive it in an ethical vacuum. You must practice it. I comment as one who practices law.

I frequently represent persons accused of crimes. These accused citizens usually have given six or more statements to the authorities, each statement more incriminating than the preceding one. In these cases, the issue is not guilt, but sentencing. In short, the question is: What will the State of Tennessee do with the offender?

In many jurisdictions, including those where I most practice, the prosecutors and judges demand that offenders be placed behind the bulwark's bars for considerable periods of time. They typically understand criminal law as “the bulwark of freedom”: