On January 5, 2006, the American Association of Law Schools Section on Professional Responsibility hosted a section meeting on the Professional Responsibility and the Religious Traditions. The purpose of the meeting was to introduce law professors to a deeper understanding of the influence of religious traditions on the shaping of the modern understanding of the role of the lawyer in social life, their viability as traditions for critique of professional norms and practices, and the expectations these traditions set for the ethical behavior of lawyers, particularly those who come out of these traditions.

The conference began with the assumption that, before secular rules of professional responsibility came to regulate American lawyers, their religious traditions provided a rich body of narratives, values and rules about the nature of the lawyer's calling, his or her role in society, and expectations for ethical conduct. The organizing assumption of the program was that these traditions of professional responsibility, while they share many common assumptions, also interpret the lawyer's role and responsibilities in distinctive ways.

“We cannot endow people with intelligence. Intelligence fundamentally is this capacity to ask questions, and this capacity is entirely from nature.”

My concern here is the rule of law, in all its operations. I select the unexpected word “operations” in order to telegraph a difference from much other natural law jurisprudence. The rule of law is not just a battery of operations; however, failure to appreciate the place of operations in the rule of law leads to a straw-man rule of law—and we know too well the fate of straw men. It is flesh-and-blood men and women whose operations bring about the rule of law, if a rule of law there is to be.

The recent three-hour program on “Professional Responsibility and the Religious Traditions” at the annual meeting of the American Association of Law Schools (“AALS”), sponsored by the Section on Professional Responsibility and co-sponsored by the Section on Law and Religion, represents a milepost in the history of the religious lawyering movement and offers a valuable opportunity to reflect on that history. In 1998, only eight years ago, one of us defined the religious lawyering movement as “an emerging force” in legal ethics. In that short time, the movement has expanded dramatically and has received greater attention within the academy and the bar. It has developed the first institutional vehicles for disseminating and promoting conversations about religious lawyering, both among lawyers of the same faith and among lawyers of different faith traditions. Now the religious lawyering movement is increasingly confronting more complex and more difficult religious, legal and ethical issues; and is extending the religious lawyering conversation internationally.

The nineteenth century was the age of legal science. Across the globe, numerous cultures began to think of their law in terms of an interlocking system of internally coherent rules. While the details differ, these movements shared the belief that numerous legal propositions were held together by a small number of core legal concepts, and that correct decisions could be determined via formal methods of legal deduction and analysis. This mode of legal thought gave increased importance to legal concepts and analytic categories. Duncan Kennedy has termed this mode of legal analysis Classical Legal Thought.

This restructuring of legal analysis brought about changes in the understanding of what the law is and how it should be studied. In its American variant, the ascendance of Classical Legal Thought is usually associated with Christopher C. Langdell's tenure as dean of Harvard's law school. Langdell created the modern law school by shifting legal training away from apprenticeship and moving it to a university setting where students were trained as legal scholars. Underlying the Langdellian moment is the assumption that law is comprised of analytic concepts which can be apolitically applied through a series of deductions made from the core legal principal.

As a Jesuit priest whose ministry includes the teaching of constitutional law, I regularly struggle with the task of interpreting two foundational normative texts: the Bible and the U.S. Constitution. The Bible plays a central normative role in the life of the Church, while the Constitution provides a normative framework for American law and politics. These texts ground the ongoing lives of both the Church and the American political community. Both of these textually constituted communities face the challenge of appropriating for contemporary experience a normative text produced in a significantly different historical context. But can American constitutional lawyers learn anything from the ways in which the Bible has been interpreted within the life of the Church?

Jaroslav Pelikan, eminent historian of the Church's doctrinal tradition and Sterling Professor of History Emeritus at Yale, believes that those engaged in the enterprise of constitutional interpretation can indeed learn something from the history of biblical interpretation. Drawing on a life-long “study of the twenty centuries of interpreting Christian Scriptures,” Pelikan offers his new book, Interpreting the Bible and the Constitution, in the hope that it “may be of some help and illumination … to those who stand in the tradition of the two centuries of interpreting American Scripture.” (37)

One might think about the relationship between law practice and religion in different ways, depending on how one views either the professional norms or religious belief and observance. Some of the most recent academic literature on “religious lawyering” is premised on a highly critical view of the profession's norms and a claim that religious convictions that bear on the practice of law are incompatible with, and preferable to, aspects of the professional norms. My purpose here is to identify, and raise some questions about, both this critique and this suggestion, and to show how they are in tension with other insights of the religious lawyering literature.

A conception of the relevance of religion to lawyers' work need not begin with a critical view of professional norms and professionalism. On the contrary, one might start with the premise that the legal profession's expectations for law practice are socially and morally laudable, and perceive lawyers' religious convictions as providing support for good lawyering. This was the understanding expressed by Henry A. Boardman, a Presbyterian Minister, in an 1849 oration that was surely among the earliest recorded reflections on the relevance of religion to the work of U.S. lawyers.

A remarkable phenomenon in the history of Western political and legal thought is the emergence of so-called sixteenth-century Calvinist resistance theory. Groups of intellectuals, committed to the theology of John Calvin and seeing the Reformed churches of their homelands oppressed by hostile monarchs, stepped beyond the rather strict obedience that Calvin commended toward civil authority and advocated various degrees of civil disobedience and even revolution. Two early and famous expressions of Calvinist resistance theory were from the “Marian exiles,” British Calvinists on the continent who fled the persecution of Bloody Mary Tudor in the 1550s, and the French Huguenots who wrote in the aftermath of the St. Bartholomew's Day Massacre of 1572. Scholars have made impressive claims about these writers. Many perceive in their work a major turning point in political and legal theory and identify it as a key source for the development of Western revolutionary thinking and modernization more generally.

My agenda here is Roman Catholics in the American legal profession, from George Higgins's Jerry Kennedy to Judge Samuel Alito's joining the four other Catholics to make a majority on the federal Supreme Court. (I thought, as I said this in Washington, just before the Senate confirmation hearings in January 2006, that some in attendance may not have thought about this, and may have wanted to leap to their feet and phone their senators.)

Begin with ethnographic narrowing: When I talk about Catholic lawyers in the U.S., I mean to talk about descendants of the late immigrants—that is, people whose ancestors came here between the end of the Civil War and the end of World War I, when Congress stifled European immigration. I am talking, closer to home, about the twenty-five or thirty American law schools that were set up to provide vertical mobility to the children and grandchildren of the late immigrants. There were, to be sure, Catholic lawyers in this country before the late immigrants and the Catholic law schools. Roger Taney was a Catholic, although we don't brag about him much. Lord Baltimore no doubt had a few Catholic lawyers in tow when the Carrolls and the Calverts came to Maryland in 1734. But the immigrants and the Catholic law schools have provided most of the numbers; they are at the heart of the lawyers I am thinking about here. “A people within a people,” as David Gregory puts it.

Nowhere, in recent times, has the question of the Islamic Law of Shari’ah produced such a crescendo of concern, posed such a challenge to the prevailing justice system, as in Nigeria. In "modern" societies, the criminal justice system not only produces social solidarity by reaffirming the society's bond and its adherence to certain norms, but also serves to legitimize the political authority of the state. In the postcolonial pluralistic society of Nigeria, the criminal justice system has been fundamentally influenced by the ascendancy of Western penology. During the era of European colonization of Africa, existing systems of justice were suppressed; in Nigeria's case, by the British imperial power. Predictably, the British system of justice clashed with the indigenous systems. Nowhere is this historical conflict more manifest than in the ongoing challenge Shari’a has posed to the Nigerian state. Shari’ah was an incendiary issue during the colonial period (1900-60) in Nigeria, and has continued to challenge the classical view of the modern state ever since. This challenge has reshaped Nigeria's postcolonial criminal justice system. Here religion, politics, and society intersect, shedding light on the arrival, reactions, and crises of modernity, themes that run through the Shari’ah controversy like interwoven threads.

Why do nine Supreme Court justices have the power to overturn the choices of a majority in a democratic nation? This question, known as the counter-majoritarian problem, has driven constitutional theory for the past forty years. Likewise, it is the question at the heart of Jed Rubenfeld's Freedom and Time, A Theory of Constitutional Self-Government. In responding to this question, Rubenfeld argues that freedom and democracy require temporal extension, precluding either freedom or democracy from being reduced to the immediately present majority will of a people. Therefore, Rubenfeld concludes that the checks on the immediate will of the people at the heart of constitutional judicial review are not only democratically permissible but a necessity.

Is belief a prerequisite of interpretation? Can we interpret a document if we do not believe that it has something to say to us, if we do not anticipate that we can learn from the text? Jaroslav Pelikan's assessment of the similarities and differences in constitutional and Biblical hermeneutics does not raise this question expressly, but his eloquent description of how the faithful struggle to remain true to their guiding texts inexorably leads one to question the role of belief. In this essay, I first acknowledge the unavoidable significance of belief in the elaboration of a textual tradition. Then, I argue that rhetorical and hermeneutical principles clarify the distinction between a faithful interpretation rooted in belief and the inauthentic manipulation of a text for strategic goals.

Belief fosters commitment to the text, which legitimizes and authenticates an interpreter's efforts. We readily distinguish the constitutive exegetical rhetoric that girds social life from the “mere” rhetoric employed by sophistic interpreters, characterizing the former as a vital and productive development of a tradition and the latter as a corruption of the tradition. Pelikan claims that his goal is to formulate a general methodology of faithful interpretation, but his reflections confirm that there can be no neat methodological distinction between a legitimate reading rooted in belief on one hand, and a strategic manipulation of a text designed to undermine the cause for belief on the other. Making this distinction requires a judgment that can be rhetorically defended but never methodologically justified; the faithful may prove themselves only in the “dangerous maybe” of debate and persuasion. As Gene Garver has argued, Aristotle's great advance was to show that rhetoric is an art of character and not just a matter of logic. I would add that there can be no methodology of interpretation because there can be no methodology for developing one's character.