My background is in law as a student and a lecturer. I lectured in jurisprudence and legal theory. In this post I plan to concentrate on how judges in common law legal systems in the UK and USA decide cases and how the process has parallels to assist our understanding scripture. Apart from statutes English law is based on the common law as ameliorated by equitable jurisdiction. Don't worry it will be explained later.
Common law is so-called because it applies across England and Wales. It consists of judicial decisions in legal cases known appropriately as case law. Case law consists of published reports that set out the facts of a case, the consideration by the judge(s) of the relevant law (as they perceive it), the reason(s) for the decision and judgment. We have a system based on precedent which means later cases with similar facts should be decided in like fashion to earlier cases in order to produce 'certainty'. Simple really, but no, judges will distinguish cases on the facts so as not to have to follow the decisions in earlier cases.
Judaism had, and has, professions engaged in interpreting the Law, not just to circumvent a specific rule but also to apply it in vastly changed societies. It is the age old battle between either rigorous rigid adherence to the original rules or applying fluid and flexible interpretive methods: in Christian circles a battle continuing to this day in interpretation of the Old and New Testaments.
The judiciary find another way round decisions in earlier cases by applying their equitable jurisdiction. There are a number of maxims or principles of equity which set out the parameters within which judges may exercise this jurisdiction. Equitable jurisdiction acts as a supplement, not as a replacement to common law. It seeks to produce fair and just outcomes for individuals in the circumstances where equitable maxims may be applied.
Concepts of fairness and justice are central to Christianity yet sadly there are those who interpret the bible in a narrow rigid manner and would exclude other interpretive methods which seek to apply the broad concepts articulated by Jesus.
It is said that in England judges do not make law. Law making is for the Crown in Parliament through legislation. The judiciary is a mere interpreter of statutes and subordinate legislation. There are clear rules of statutory interpretation.
But what are we to make of the common law? After all, it is not made by the legislature but exists in law reports over which Parliament has no authority. Legislation may be passed to overrule or amend the common law. The myth is that judges do not make the common law, they merely interpret it. This is nonsense intended to divert attention away from the ability of an unelected body of judges to make law.
A simple illustration of the myth. Regard the common law as a lump of potters clay. The clay may be made into all manner of shapes but it stays a lump of clay. No new clay has been created, it has simply been moulded into a new shape. The common law is shaped and moulded by the judiciary, but nothing new is created. The common law is being applied to the facts in cases, not being changed by novel judicial ideas. Nonsense.
Instead of common law think Old and New Testaments. Think of these as a lump of clay. How is this clay shaped and moulded? How is it applied to modern society? Who is responsible for determining the meaning of scripture and its application? Who indeed?
Do you consider the meaning of a passage of scripture without any preconceptions? Highly unlikely. We do not act and think in a vacuum: in the background or foreground there are influences at work as a consequence of our knowledge, experience and motivation. Family, economics, politics, social policy, educational attainment, employment, class, income, hobbies, faith, newspapers, television et al all conspire to shape our opinions, our thinking, our action. Whether it is a judge deciding a case, a bishop commenting on a theological issue, or the man at the bar in the pub holding forth there is a complicated potpourri of factors shaping their thinking.
Oliver Wendell Holmes Jr. was a long- serving judge of the USA Supreme Court and a distinguished jurist. He coined the phrase inarticulate major premises as a description of how in deciding cases judges take into consideration factors outside the facts of a case and a logical application of the law to the facts, sometimes knowingly, sometimes unconsciously. In other words, a cartload of baggage. What baggage do we bring to our interpretation of scripture? When reading opinions on the meaning of scripture we should ask what agenda the author is promoting. Consider this statement by John Piper a USA Baptist minister and theologian.
"If you alter or obscure the Biblical portrait of God in order to attract converts, you don't get converts to God, you get converts to an illusion. This is not evangelism but deception."
In other words, if you don't accept Piper's interpretation of scripture you are deluded and deceived. Piper bring his inarticulste premise to bear on biblical interpretation.
Holmes was a prolific writer. Below I have summarised three points he made concerning his understanding of the law, points which may be equally applicable to our understanding of scripture.
* The life of the law has not been logic it has been experience.
* Law is a set of generalisations of what judges did in earlier cases.
* Words are the skin of living thought.
I proffer the thought that our understanding of scripture should be akin to that of Holmes in respect of the common law. Postmodernism has drawn out the fluidity of words. Faith is not based on pure logic but on hope and experience. We should not interpret scripture as a set of static, rigid, fixed rules but as fluid and dynamic guides to faith.
According to Oliver Wendell Holmes the law has no metaphysical or natural law basis. It is not a brooding omnipresence in the sky.
"The prophecies of what a court will do in fact and nothing more pretentious are what I mean by the law."
Such an approach applied to scripture would not commend itself to bible literalist fundamentalists, but should pose no problems for those whose doctrinal belief is that scripture is human inspired.
We may take inspiration on how scripture should be read by referring to Holmes observations on the method that should be adopted to applying the provisions of the USA Constitution. Unlike the UK the USA has a written Constitution. Holmes argues that the Constitution should not be read as a statute is but as the common law is read.
"The provisions of the Constitution are not mathematical formulas that have their essence in form: they are organic and living institutions. Their significance is to be gathered not simply by taking the words and a dictionary, but by considering their origin and line of growth."
When interpreting scripture I commend the approach outlined above. We have a living faith relevant to our time. Therefore, we must interpret scripture accordingly. Our faith must not be hampered by interpreting scripture as we would a statute.
Beware those who seek to control, or guide us towards a static exclusive introspective faith/belief/opinion. Embrace those who guide us towards a dynamic, outgoing and inclusive undertanding. Throw out legalism, welcome reading scripture through the lens of love.
The twin tyrannies of literalism and legalism continue to haunt our understanding of and acting on the dynamic principles of Christian faith as stated by Jesus in the two great commandments. Two simple yet profound principles urging us to take action: to love God and to follow him in the pursuit of justice. The synoptic gospels contain numerous examples of Jesus tackling literalism and legalism as well as their purveyors. It serves us well to consider how Jesus challenged the gatekeepers of his time and in so doing equip us to counter present day proponents of literal interpretation and narrow legalism.
In Matthew 5 there is a phrase used as a formula to contrast a rule and the interpretation placed on it by Jesus:
"You have heard that it was said......But I tell you."
In each case Jesus develops a broad principle out of a narrow rule.
Matthew 23 and Luke 11 expound the views of Jesus on the attitudes and behaviour of the Pharisees and the experts in the law. It is an exposition of all that Jesus considered to be wrong with the law and its interpreters and practitioners. It is unremittingly harsh. Two examples:
"Woe to you Pharisees, because you give God a tenth of your mint, rue and all other kinds of garden herbs, but you neglect justice and the love of God. You should have practised the latter without leaving the former undone." Luke 11:42
Justice and the love of God: the two great commandments. A move from rules to principles.
"You experts in the law, woe to you, because you load people down with burdens they can hardly carry, and you yourselves will not Lift one finger to help them." Luke 11:46
Jesus freed us from the burden of the law by fulfilling it in the two great commandments. The restrictive narrow rules are swept away on the wave of dynamic enabling principles.
A further illustration. In Mark 3 we read of a man with a shrivelled hand who was healed by Jesus on the Sabbath contrary to the law. Jesus said:
"Which is lawful on the Sabbath: to do good or to do evil, to save life or to kill?"
Jesus challenged the religious leaders of his time. He challenges us to do likewise, to confront those who would seek to deny and exclude individuals from Christian communities by hiding behind doctrine, legalistic or literal interpretation of scripture. Instead, read scripture through the lens of love.
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