A Federal Court Disclaims Its Ability to Decide What is True and Not
Published on: August 1, 2012
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  • Wayne Lusvardi

    As usual Dr. Berger’s column provides rich material for comment. It would seem to me that the Lutheran theology of the “two kingdoms” would provide a basis for such a split-level house of law. This doctrine teaches that God rules the earthly world through the secular government by means of law and in the heavenly kingdom by gospel or grace.

    It is often apparent in law that judges and juries sometimes can’t get above social class or political partisanship in their decisions. In criminal cases I’ve experienced the defense counsel’s job was to “excuse” as many prospective jurors who were dissimilar to the defendant’s social class as possible and the prosecutor the opposite. It was assumed that no one could transcend their social class values.

    A proposition would be to test how many of those who were religious could be fair compared to those who were not. My guess is that those who were devoutly religious (who didn’t check the box labeled “none” when asked on a questionnaire about religious affiliation) would tend to be fairer. They would have a transcendent basis by which to get above their value system, albeit not above the law. But courts don’t ask about religious affiliation or participation even though those who do opinion polling say religion is the strongest variable of how people vote.

    The recent decision by Supreme Court Chief Justice John Roberts, whether one agrees with it or not, would seem to be a case where a certain degree of transcendence was required. Probably not coincidentally, Roberts is a product of the Roman Catholic school system and his wife is also Catholic and serves as a Trustee on the board of the College of the Holy Cross in Worcester, Massachusetts.

  • Wayne Lusvardi

    Dr. Berger’s column reminds me of sociologist Max Weber’s distinguishing between empirical, Kadi, charismatic, and rational forms of jurisprudence.

    Kadi, or Qadi, is a judge ruling in accordance with Islamic religious law that makes no distinction between secular and religious domains (Wikipedia.com).

    Following Weber, sociologist David Matza in his book “Delinquency and Drift” defines:

    Empirical justice as guided by the interpretation of concrete legal procedures;

    Kadi justice as based on concrete legal and ethical and practical valuations;

    Charismatic justice as based on concrete revelation.

    Matza viewed the juvenile court system as a Kadi form of justice practiced in a bureaucratic setting. This could also be said for child abuse courts and foster care.

    The zoning case Berger cites could be viewed as a way to segregate the rational and the charismatic forms of justice.

    Weber wrote: “All non-bureaucratic forms of domination display a particular co-existence; on the one hand, there is a sphere of strict traditionalism, and on the other, a sphere of free arbitrariness and lordly grace…” (from The Development of Bureaucracy).

    What Berger describes is perhaps a form of “coexistence” of religion and law in a Western bureaucratic context.

    More humorously, I found the definition of Kadi justice in Femi Ajayi’s book “The Effect of Religion on the Political Process: The Case of the Federal Sharia Court of Appeal” (2009) to be most amusing:

    “Kadi suggested a half literate, tattered, corrupt fatman in a fez acting with complete arbitrariness and amid the ruins of a failing Oriental despotism.”

    In the court case in Louisiana cited by Berger I wonder how the original bureaucratic zoning planner and local judge would be described any differently than the Kadi judge described above?

  • Anthony

    “What the discussions do express is a secular discourse, which has proven itself as a very useful instrument to maintain peace and civility among people with different world views.”

    The balancing tension inherent in democracy especially the American brand (with its canonized seperation of church and state as well as religious freedom – or freedom to not believe) educes judicial rulings in this area bracked by etsi Deus non daretur to better serve our pluralist social arrangements.

    An individual may (in the United States) be both a believer in Democracy and a believer in God yet operate pluralistically with discretion.

  • Anthony

    @3: bracketed and separation.

  • Jimbino

    I hope it is not true that one’s religion is the principal indicator of how one votes. We are presently cursed by a SCOTUS with 6 Roman Catholics and 3 Jews. If we didn’t have 3 Jews we might as well look to the Vatican for verdicts.

    Even worse is that nobody in SCOTUS or POTUS and only one in COTUS is a declared atheist.

    Equally damning is that nobody on SCOTUS is degreed in math or any science, there are only 8 such in all 535 of COTUS and none in POTUS since Hoover and Carter, who were engineers, not scientists.

    We are a country governed by sectarian religious ignoramuses. England had Thatcher and Germany has Merkel, both scientists (and probably atheist as well).

  • PaulRamsey

    “The recent decision by Supreme Court Chief Justice John Roberts, whether one agrees with it or not, would seem to be a case where a certain degree of transcendence was required. Probably not coincidentally, Roberts is a product of the Roman Catholic school system and his wife is also Catholic and serves as a Trustee on the board of the College of the Holy Cross in Worcester, Massachusetts.”

    Whoa Wayne, what started as a very nice comment kinda ‘transcended” off the rails. While I think we can both agree that Justice Robert’s opinion on Obamacare transcended a reasonable interpretation of Constitution, – in other worlds it was complete unadulterated bull sheet. But to attribute that loony decision to his Catholic beliefs is more than a little far fetched.

    While I get that some non-Catholics apparently have this view that the Catholic belief in an all powerful God with powers far beyond our feeble intellects is somehow irrational and “magical”, to use that line of reasoning as the underlying basis for Robert’s lack of integrity on Obamacare just doesn’t hold any water. Talk about magical thinking.

    The Catholic belief in the wonders of God does not mean that Catholic’s are more apt to indulge in magical thinking than anyone else.

  • Wayne Lusvardi

    The PEW Research Center states that “white protestants overwhelmingly voted Republican and the religiously unaffiliated voted Democrat.” I believe most empirical studies indicate religion as a strong predictor of voting. But perhaps we should leave that up to Dr. Berger to explain.

    Here is a link: http://pewresearch.org/pubs/1791/2010-midterm-elections-exit-poll-religion-vote

  • Wayne Lusvardi

    I stated that is was a hypothesis to research if religiously devout persons were more apt to be fair in jury trials — it is my bias that they probably are fairer because it is part of their value system.

    If a person has a Marxist view of the world my guess is that person will just believe that one’s consciousness cannot be raised beyond one’s social class interests.

    I am not sure I am right on this issue – I am only throwing out a hypothetical based on my recent experience on a jury.

    Justice Robert’s ruling will be judged by history and the law of unintended consequences.

  • Cunctator

    If a US Court does not accept the “supernatural”, what happens to the oath “so help me God”?

  • Gary Novak

    In Berger’s sacramental view of the universe (expressed in A Far Glory, p. 160), the empirical world in its entirety is a gigantic symbol of the face of God. What a beautiful characteriztion of the relation between naturalism and supernaturalism! Naturalism is not a threat to religion but, seen through the eyes of faith, it is God’s poetry.

  • Inga Leonova

    Are you following the Pussy Riot trial in Moscow? Here is a poster case not only for a flagrant violation of due process but also of the legal challenges presented by trying to apply theological veneer to civil law.

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