May 16, 2013 - LAW AND RELIGION FORUM

From the beginning, America identified strongly with Israel. I don’t mean the modern state–although America identifies with that, too–but with the Israel of the Old Testament. Americans of the founding period certainly saw things this way. Just think of all those Old Testament names on Puritan gravestones in New England. Even Thomas Jefferson, no orthodox believer, looked to the Old Testament in designing a Great Seal of the United States. Jefferson’s proposal, never adopted, was for a depiction of the “children of Israel in the wilderness, led by a could by day and a pillar of fire by night.”

A recent book by Haifa University historian Eran Shalev, American Zion: The Old Testament as a Political Text from the Revolution to the Civil War (Yale 2013) discusses this history, which continues to have ramifications today. The publisher’s description follows:

The Bible has always been an integral part of American political culture. Yet in the years before the Civil War, it was the Old Testament, not the New Testament, that pervaded political rhetoric. From Revolutionary times through about 1830, numerous American politicians, commentators, ministers, and laymen depicted their young nation as a new, God-chosen Israel and relied on the Old Testament for political guidance.

In this original book, historian Eran Shalev closely examines how this powerful predilection for Old Testament narratives and rhetoric in early America shaped a wide range of debates and cultural discussions—from republican ideology, constitutional interpretation, southern slavery, and more generally the meaning of American nationalism to speculations on the origins of American Indians and to the emergence of Mormonism. Shalev argues that the effort to shape the United States as a biblical nation reflected conflicting attitudes within the culture—proudly boastful on the one hand but uncertain about its abilities and ultimate destiny on the other. With great nuance, American Zion explores for the first time the meaning and lasting effects of the idea of the United States as a new Israel and sheds new light on our understanding of the nation’s origins and culture during the founding and antebellum decades.

I am greatly looking forward to participating toward the end of the month in a workshop on the thought of Sir Thomas More, to be held at the University of St. Thomas under the auspices of the excellent Murphy Center. But I wanted to point readers to a very worthwhile extended review by Louis W. Karlin (one of the conference’s conveners) of Travis Curtwright’s recently published The One Thomas More (2012). Because I am scheduled to teach Professional Responsibility in spring 2014 and am fixing to reconstitute the course substantially, I found the following in the review especially interesting. One issue I’ve always wanted to learn more about–and have thought might be rightly considered in a legal ethics course–is the relationship of equity to law and specifically the question whether equity may be understood as within law or instead as sitting outside it.

A particularly important aspect of Curtright’s study is his focus on More as a lawyer and jurist, demonstrating how More integrated his formative humanistic studies in classical literature with his professional career. Contemporary legal practitioners and scholars will find much to ponder in Curtright’s extended analysis of the organic connection between rhetoric and jurisprudence in More’s thought, as it is developed in readings of Richard III and Utopia. More believed that an education in the liberal arts, especially when combined with the study of law, informed and strengthened the practical judgment.

Curtright detects in More’s Utopia the foundations of a unique humanist jurisprudence. By cultivating one’s practical judgment through careful study of poetry, history and law, a would be lawyer or legislator can discern the highest ideals for human flourishing, while simultaneously recognizing the inherent limitations in human nature that militate against radical reform. More’s humanist jurisprudence reached its fruition in the expansion of equity jurisdiction that he championed and applied as a judge in the Chancery and Star Chamber courts to ameliorate the unfairness arising from strict application of legal rules under common law. For More, equity, as the application of practical reason according to conscience, did not give a judge license to ignore the law in favor or his own understanding of justice. Rather, equity provided a moderating, ameliorative function to be exercised to better the law’s intent.

The notion that a young humanist champion of utopian reform gave way to a conservative statesman is to mistake the voice of Utopia’s Raphael Hythloday for the author’s. As Curtright persuasively argues, the “real” More’s voice heard in The Life of Pico and Utopia is distrustful of “[s]ystematic answers to political problems,” advocating instead “engagement and accommodation applied toward modest goals” (86). Thus, in his jurisprudence, it is the “rigor of the law, not the law itself, that should be reformed.” As a judge and statesman, More distrusted radical reform in the manner of “sweeping Utopian legislation because More’s ideas of reform, such as they were, deal with the application of equity through conscience” (99). This did not reflect “‘an Augustinian belief in the total and helpless depravity of fallen man,’” as Elton thought (7). Rather, it follows from the same realization that inspired Dr. Johnson’s compassionate conservatism: “The Cure for the greatest part of human Miseries is not radical, but palliative.” (The Rambler, No. 32, July 7, 1750.)