On a general note, it is interesting to consider the role of “a jury of his peers” in the justice system.
But going back to the original case, I find it difficult to pass over the accused pastor’s sermon. Even if I somehow knew that the pastor was innocent of all the charges, the sermon alone would make me break out the tar and feathers.
It is interesting that halacha, Jewish religious law stemming from the Talmud and later Jewish rabbinic writings, occupies something of a middle ground between the abstraction Mr. Berger deplores and the personal, community-related approach he seems to prefer, other things being equal. Talmudic law consists of applying Torah law (or the rabbis’ interpretation of it) to individual cases, real or imaginary, and thus has a concrete character. In traditional Jewish communities, the local rabbi would have been the legal decision-maker of first resort, which is like the African tribal scheme Mr. Berger describes. But it was also possible, if the local rabbi could not decide the matter, to appeal to famous rabbis at central academies such as that in ancient Baghdad, who presumably did not know the parties and thus functioned more like an impersonal Western legal system. Such “responsa” themselves became an important cumulative body of Jewish religious legal thought.
Berger notes that juries introduce a platoon element into modern law, which, however, remains essentially abstract. That is certainly true, especially given the abstract nature of jury selection, which produces not a random sample of village idiots but a sociologically informed selection of individuals with specific social characteristics. Attorneys for both sides routinely dismiss many prospective jurors whose social characteristics might prejudice them. Consider the O. J. Simpson trial, which finally settled on a jury over-represented with black women. Prosecutor Marcia Clark bet that black women would sympathize with the female victim; the defense bet that black women would identify with the black defendant. Many saw the trial as virtually over when jury selection was complete. Jury nullification (in which juries ignore the niceties of the law and the judge’s instructions to render what they consider to be a just verdict) does not, therefore, necessarily introduce an element of personal justice into the trial but typically adds another opportunity for attorneys to cynically manipulate outcomes.
But what about the central question: “Would I want my neighbors to decide my fate?” Underlying that question is another: “What is man?” Recall Berger’s earlier point that (philosophical) anthropology precedes ethics. If man is essentially a bearer of abstract rights, then a Kantian system of deontological (formal, rational, abstract) ethics and law would seem to be in order. If each man is a unique child of God with an individual soul, then one-size-fits-all justice is almost by definition injustice. The Christian believes that God knows each individual to the core and renders perfect justice. But on earth, those with the closest personal knowledge of us may be the village idiots. Perhaps their knowledge of our good heart will temper their disapproval of our being “rough around the edges.” Perhaps they will form a lynch mob. Pilate: I find no fault in him. The village idiots: Give us Barabbas. Their knowledge of our pure heart may not count in our favor.
Or maybe it is simply not possible for any human to know the heart of another. Some of our neighbors will be cronies, others enemies—but which of them could render real justice even if he wanted to? That thought may incline us to prefer impersonal justice. But Jesus says we can know people by their fruits. And Max Scheler says that the ordo amoris (order of loves or “priorities”) is the means whereby we can discover, behind the initially confusing facts of man’s morally relevant actions, behind his expressions, his wishes, customs, needs, and spiritual achievements, the simplest structure of the most fundamental goals of the goal-oriented core of the person, the basic formula, so to speak, by which he exists and lives morally” (Selected Philosophical Essays, p. 99). (Scheler, not so incidentally, was a critic of Kantian formal ethics.)
It might seem odd that Martin Berman-Gorvine thinks Berger prefers personal, community-based justice when Berger explicitly says that in America he would prefer an impersonal judge. (The “choice” of a personal judge in a traditional African village has little significance when no system of abstract due process was available.) But I think Berman-Gorvine is right in feeling that Berger thinks true justice must be personal. It’s just that, this side of the Kingdom of God, impersonal justice represents the lesser evil.
Abstraction in law is necessary because one must know, before the act, whether any particular act is legal. Without this, the legal system becomes arbitrary, capricious, and easily corruptible: used by the authorities to reward friends and supporters, and punish opponents.
One obvious example is that people negotiating contracts must know ahead of time what a proposed contract requires and permits them to do. But same reasoning applies in many other situations too: what are you required to do in case of an automobile accident, what are you allowed to do in self defense and when, etc.
Berger’s poses a felicitous question: “would I want my neighbors to decide my fate (in a court of law)?” This reminds me of a recent summons to appear in Superior Court in Los Angeles this past year. The case in which I was a candidate to serve on as a jurist involved the two most hideous gang leaders one could image, both on parole with death tattoos on their faces. They were both accused of carrying guns while on parole in an altercation with police in which they were both shot.
The jury selection process involved the typical weeding out of perceived biased jurors mostly on the basis of whether one could be “fair” and “unbiased” as a juror. The jury selection process that followed was probably the closest to a real world simulation of social psychologist Solomon Asch’s conformity experiments conducted in the 1950’s. Asch found that when a person was placed in a group where all the others were rehearsed to lie about something –- like which line in a set of line drawings was longest or shortest – most participants conformed to whatever was the group’s (wrong) answer. Something similar seems at work in most jury selection processes. Very few jurists are willing to be socially embarrassed to say they could not be fair or unbiased in a court case involving known felons carrying guns in violation of their parole conditions when involved with an altercation with police. Those who were willing to say they could not be fair obviously may have had what psychologists call “secondary gain” — they could be dismissed from the jury without having to serve. But it was left up to the prosecutor and defense counsel to ferret out which jurists may be lying and which not.
The question posed to potential jurists was similar to Berger’s: could you be unbiased when known felons on parole — who even the judge said were indisputably found with hand guns –- were shot by police? Who could humanly be unbiased when confronted with such an absurd — or as Berger might call it — such an “abstract” question? Many honestly said they would give the police the “benefit of the doubt” in such a situation and were summarily dismissed. My guess is that most jurors would be biased toward “protection of the community” given the undisputed facts of the case. But that was obviously not a question that was asked potential jurors.
Those who like me had an ambiguous background as a former court social worker protecting abused children and as a psychiatric specialist in the U.S. Army in the Viet Nam war — and who worked for various levels of government as a real estate appraiser — were dismissed by the prosecutor. The prosecutor was obviously reaching for prospective jurors who were used to uncovering cold hard facts – accountants, auditors, and a statistical analyst.
I guessed that after I was dismissed that the defense counsel also dismissed the accountant, auditor, and statistician. Thus, working class jurors who were possibly closer in social class to the defendants were likely to be left as the “jury of peers.” But this obviously, has little to do with the possibility of deceptive jurors who presented themselves as “unbiased,” like some character out of Irving Goffman’s book “The Presentation of Self in Everyday Life.” Jury selection is a social game.
The question of “who is my neighbor?” is asked in the Christian Gospels (Luke 10: 25-37). The answer the Jesus of the Gospel gives is that a person who is a Good Samaritan to a crime victim is your neighbor. But can you be neighborly to robbers or would be robbers and violent gang leaders? If you find them innocent would this pose a threat to your neighbors or someone else’s neighbors?
Jewish scripture says “you shall not give false testimony against your neighbor” (Exodus 20:16). Conversely, you should give true testimony. The question posed in the Christian Gospels might be reversed today: not “who is your neighbor” but “who is an un-deceiving juror?” No wonder Berger tends toward an impersonal judge.
Since “a jury of one’s peers” meant precisely that, rather than 12 people with nothing better to do, one could argue that the Founders intended us to be judged by our neighbors.
On the end of this year I would like only to thank to Mr. Berger for his very informative and provocative contributions about different curiosities related to religion. I read and enjoyed his comments every weeks and I beg him not to end the weekly stories! Best regards from Szeged, Hungary, Europe
“Would I want my neighbors to decide my fate?” is a perfect question to showcase the curious and not so curious differences between “forgiving neighbors, “2nd chance neighbors,” “rehab neighbors,” “socio-economic the devil made me do it neighbors,” “revenge punish them neighbors,” and the “impersonal judge neighbor,” not to mention those neighbors who would prefer to “pass on the other side” and purposefully disqualify them selves from jury duty (which I saw when in jury pools waiting to be assigned to a court room).
It’s not only whose ox gets gored but also whose justice and, most importantly, whose profession gets gored.
Whether Roman Catholic priests and minor children or protestant pastors and choir directors or other active women of their church, the fall-back used to be either cover up and transfer to another diocese or synod as they are “born again”, or the confession seeking forgiveness in the Berger example and, oh by the way, condemnation to hell if you don’t forgive and let me go. It will be interesting to see what happens as religious bureaucracies crumble and congregations take on a more sovereign role, yet with virtually no pockets with money in them.
I resonate deeply with Berger’s skepticism. A company in New York City (1980s) wanted help finding fired executives new jobs elsewhere. Offense: accused of sexual harassment. They said they didn’t take scum bags and were told none were. They asked five questions: First: innocent or guilty of a real offense (sexual predator/harasser). Answer in each case: “innocent” in their judgment. Second: why fire the guy (always a guy). Answer: Because our agency can’t take the negative publicity (particularly true when a government agency). Third: what was behind the accusation. Answer: women clearing the promotion ladder of men above them. Final question: what were they doing to prevent repeats. Answer: always the same: after six months the accuser would be gone. The “interpreted” (to use a Berger term) accusation cases dropped dramatically, as people learned the “new rules” (as Bill Maher likes to say) to the “social game” (as Berger calls them).
I once had a temporary office on an “Executive Suite” floor in New York City, with shared secretary, phone bank, mailing address, conference room, etc., awaiting our new office. There was fraud in one of the companies (in single amounts of less that $5,000). Many of us on the floor received a letter from the DA stating they were investing, putting us on the list, and what did we have to say about that as to why we should not be indicted, and that we had 5 days to respond. Two friends of mine, innocent (one the manager of the office suites setup) were told by their lawyers that it was ridiculous and let them sue.
However, having been drafted and served in the Army 1966-1969, I was aware of how molehills can become mountains in the hands of the over eager. So I took off time from work to write an 85 page response detailing my every action, meeting, interaction with others, times of, etc., with contact numbers of those involved, and, as a bonus, as my two friends were told by their attorneys to dismissed it and say “sue me,” I listed why they were innocent.
The result: all were indicted but me. No one went to jail but they were all fined and told they could no longer work in their respective industries. It made headlines and prosecutors looking for a reputation for later political aims, did so by preying on unimportant, non-powerful small business white collars.
When I was in NFL training camps, players were told there only defense if accused of sexual improprieties was to have no record the first time and reach for their check book after that. They were told to avoid situations ready made for accusations. There are indeed some women who are Willie Suttons drawn to where the money is.
In another context, school bullies, I applied real world neighbor to neighbor judgment. I would either go into the school to confront the bullies and set them down with my younger sons (I let principals know in advance and they usually welcomed it), usually “deputizing” the bullies to help me keep younger kids from being bullied. I would also go to their homes, knock on their doors and talk to their dads. We resolved it. It ended their son’s bullying ways, and, where appreciated, I helped the schools set up what used to be common in my day in the 1950s, peer mediation and student courts to deal with student conflicts with each other.
So, we are stuck, it seems to me, with both large bureaucracies and small platoons that have “good and bad” members. Berger’s chilling question rings horrifyingly: who am I most afraid of? Neighbors? Co-workers? Prosecutors? Juries? Judges? Subjective understanding of those who know me or codes of abstraction by those who don’t?
Unfortunately we don’t have a choice. But if we did, I’d choose the Roman Canon Law if I was a lecherous misdeeder, and a court of law if a misdeeder outside the church. But that still leaves two key dynamics. First and foremost, in any case, assuming I had the funds, I’d hire the best hard driving, nasty attorney from a different race or ethnic group of those accusing me.
Second, and here is where Berger’s curiosity raises another huge religion and society curiosity: the drive of Muslims in America to be judged by Sharia law. At that point, to keep everyone else from petitioning to be judged by their religious and ethnic neighbors or canons or codes, the “impersonal judge” in a US court ruled by statutes, laws and rulings of precedent would have to be the only route allowed.
So, old rules: keep your nose clean and save your money for an attorney.