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Reflections on the
Practice of Law as a Religious Calling, From a Perspective of Jewish Law and
Ethics
By Samuel J. Levine
I have been carrying on a correspondence with
Dr. Samuel Levine, Professor of Law at Pepperdine University in Malibu,
California, for a couple of years now. Professor Levine e-mailed me after
reading an article I published on Christian anti-Semitism. Professor Levine’s
situation is intriguing. He is an orthodox Jew teaching at a Christian
University. Moreover, he says, he was hired specifically because Pepperdine
thought his religious commitment
would add something of value to their faculty.
Professor Levine raises an interesting issue for
Christians – the idea that our occupation in the so-called “secular” world can
be interpreted in terms of a religious vocation. This is nothing new to
Christianity. The Protestant Reformers and John Wesley argued that one’s work in
the world cannot be separated from one’s religious life. However, modernity,
with its bifurcation of sacred and secular and its relegation of religion to the
sphere of the private has resulted in the loss of this sense that career and
calling may be one and the same. It is often thought that one’s religious faith
may give one the strength and stamina to withstand the compromises and the
temptations of the dog-eat-dog world of work, but that faith is more of a
sanctuary than an integral part of one’s working life. One might wonder whether
the Jewish understanding of an all-encompassing
halacha through which the sacred enters into
the secular might inspire deeper Christian reflection on the relevance of
Christian belief and practice to all areas of life. Such reflection would
necessarily highlight the significant differences between a halachic
understanding of law and the Christian concept of Christ as the fulfillment of
the law.
It was my hope that Professor Levine would be
able to engage in a dialogue concerning his article which could be published in
TDO. His teaching commitments precluded him from doing so at this time but he
has graciously arranged for permission to reprint his essay originally published
in the Pepperdine Law Review. I
hope that we will be able to engage him in conversation in a future issue of
this journal. – Editor.
Introduction:
Life as a Religious Calling
In thinking about
the practice of law as a religious calling, it might be helpful to first
consider the broader issue of the general relevance of religion to various areas
of life, including work. From a perspective of Jewish law and ethics, moral
conduct comprises an imperative at home and at the workplace no less than at the
house of worship.[i]
Starting with the Biblical text and spanning thousands of years of legal
interpretation and philosophy, Jewish religious thought has addressed not only
the apparently sacred, but also the seemingly mundane aspects of human
behavior. Indeed, the range of halacha, Jewish legal and ethical thought,
encompasses all facets of the human experience, emphasizing the importance of an
ethically unified life and demonstrating that every area of life has moral
significance.[ii]
The Biblical verse
that may best articulate this concept commands “[i]n all your ways acknowledge
[God].”[iii]
As noted in the Talmud and elaborated upon in many of the foundational works of
Jewish ethical literature, this concise formulation powerfully captures a basic
ethos of Jewish thought.[iv]
Maimonides understands this verse to teach that all of one’s activities, pursued
with proper motivation, may and should be performed in service to God.[v]
Likewise, a classic ethical tract delineating an aspirational path toward
“holiness” concludes with a citation to this verse, to support the notion of the
individual’s unique means of achieving piety, corresponding to the unique
circumstances and experiences encountered in life.[vi]
Indeed, Rabbi
Joseph Soloveitchik has explained that “[t]he idea of holiness according to the
hala[c]hic world view does not signify a transcendent realm completely separate
and removed from reality.”[vii]
Rather, “[h]oliness, according to the outlook of Hala[c]ha, denotes the
appearance of a mysterious transcendence in the midst of our concrete
world. . . . appear[ing] in our actual, very real lives.”[viii]
Thus, “[t]ranscendence becomes embodied in [a person’s] deeds, deeds that are
shaped by the lawful physical order of which [humans are] a part.”[ix]
In short, “[t]he true sanctuary is the sphere of our daily, mundane activities,
for it is there that the realization of the Hala[c]ha takes place.”[x]
Work as a
Religious Calling
Of all of life’s
activities, a person’s work demands an arguably disproportionate amount of time
and energy. Regardless of the particular form it takes, nearly every job
occupies a substantial portion of an individual’s most productive hours. In
addition, depending on the nature of a job, a person may be required to expend
considerable physical and/or psychic energy in order to perform an often mundane
set of responsibilities. Thus, it would seem that a person’s work may present a
significant challenge to, and, therefore, perhaps should be central to a
discussion of, the goal of imbuing daily activities with moral and spiritual
meaning.
Responses to this
challenge are based in various conceptions and applications of the moral and
spiritual potential latent in the performance of occupational tasks. For
example, some jobs, such as that of the Biblical shepherd,[xi]
may allow for contemplation of and concentration on more profound matters
unrelated to the often mundane nature of the work. Alternatively, Jewish
thought recognizes ethical and religious value in the fulfillment of obligations
owed to a customer or an employer.[xii]
These two
approaches are expressed in differing explanations of the Biblical narrative
stating that
“Enoch walked with God.”[xiii]
A midrashic interpretation of this verse posits that Enoch was a shoemaker who
worshipped God with every stitch.[xiv]
The apparent meaning of this interpretation suggests that, while physically
involved in the mundane work of shoemaking, Enoch directed his attention toward
overtly spiritual pursuits such as prayer.[xv]
However, some commentators were concerned that such an understanding attributes
to Enoch thoughts that might have distracted him and detracted from his work,
thereby leading to a violation of his duty to focus all of his energies on the
task for which he was employed.[xvi]
Therefore, others instead explained the midrash as teaching that Enoch
worshipped and served God in the measure of honesty and integrity with which he
performed his job.[xvii]
Through the virtue of such conduct, Enoch merited the Biblical praise of having
walked with God.[xviii]
On
another level, many jobs may provide an avenue for the service of God through
the opportunities they present to help others and to contribute to society.
Thus, Rabbi Yitzchak Hutner responded with encouragement to a student who
expressed concern that his choice of a secular
profession was inappropriate as potentially leading him to live a “double life.”[xix]
Citing the example of the conduct of a doctor, Rabbi Hutner explained that,
through his work, the student was instead engaging in a “broad life,”
incorporating professional activities consistent with his religious values..[xx]
The Practice of
Law as a Religious Calling
In addition to
general issues that confront many other occupations as well, lawyers may be
presented with unique challenges to and, perhaps, corresponding opportunities
for, aspirations of spiritual and religious expression and growth. In
considering the relevance of religion to the work of lawyers, it may be helpful
to employ a framework that is familiar in legal thought, looking at what might
be termed “substantive” and “procedural” areas of legal practice.
“Substantive”
issues might include the clients a lawyer chooses to represent and the goals or
causes a lawyer chooses to advocate. Although similar questions undoubtedly
apply to many professions, they may be of distinct significance in the practice
of law because lawyers may be—or may, at least, be perceived as—particularly
prominent and influential members of society.[xxi]
Moreover, although scholars have debated and offered numerous characterizations
of the precise nature of the attorney-client relationship,[xxii]
it often may be necessary for lawyers to become—or, again, lawyers may be
perceived as—closely associated with the clients and causes they represent.[xxiii]
Challenges and
opportunities for the expression and fulfillment of spiritual and moral values
may arise in a variety of areas of legal practice, including representation of
low-income clients, vindicating clients’ civil rights, family law, and even
corporate law.[xxiv]
In addition, opposing lawyers in the same arena may encounter respective avenues
for religious and ethical growth. Thus, in the area of criminal law, the
prosecutor may find that the obligation to serve justice[xxv]
is consistent with concepts in Jewish law and tradition emphasizing the
importance of the human role in bringing justice to God’s world.[xxvi]
At the same time, however, the criminal defense attorney may embrace the role of
counseling, comforting, and guiding those who are in many ways often among the
most vulnerable in society, consistent with religious imperatives to assist the
needy and the downtrodden.[xxvii]
“Procedural”
aspects of legal practice may likewise present challenges to and, perhaps,
opportunities for, spiritual expression and growth, relating to the manner in
which lawyers conduct their professional obligations. The work of lawyers may
often encourage or even require behavior that, in other contexts, might be
considered less than ideal, if not downright improper. Indeed, a brief look at
just a few of the tactics central to a lawyer’s work demonstrates the
potentially detrimental impact the practice of law may have on an individual’s
spiritual, moral, and ethical character.
Perhaps the most
fundamental element of the lawyer’s conduct is the obligation to argue on behalf
of a client, which is behavior that, in other contexts, may lead a lawyer to
develop an overly contentious personality.[xxviii]
Moreover, it is not uncommon for a lawyer to advocate an argument that, although
not frivolous, does not comport with the lawyer’s own assessment of the issue,
thus requiring that the lawyer sacrifice intellectual honesty in favor of
supporting the client’s position.[xxix]
Likewise, commercial and transactional lawyers, among others, may find
themselves involved in a difficult bargaining process that calls for tough and
unpleasant, if not morally questionable, negotiation tactics.[xxx]
In the courtroom, upon cross-examination, lawyers may have to treat opposing
witnesses in a way that, at the very least, may be considered hostile and may
result in insult and embarrassment.[xxxi]
Indeed, the prevailing basic norm of lawyering, providing a zealous
representation of a client’s interests, though open to some degree of
interpretation, undeniably elevates the interests of the client as paramount,
generally disregarding potential detriment to others.[xxxii]
Attempts to
confront these challenges and possibly transform them into opportunities for
spirituality may prove even more difficult than responding to challenges arising
out of substantive aspects of the practice of law. The very nature of the
procedural questions, relating largely to internal issues of character, seems to
defy general prescription. Perhaps resolution of these matters requires even
greater attention to individual circumstances and conditions. Ultimately, then,
it may be particularly appropriate for the lawyer’s religious and personal
values to provide moral and ethical guidance in these areas.
Conclusion
Numerous scholars
have documented a growing ethical, psychic, and spiritual crisis in the legal
profession, resulting in the emergence of various responses and movements.[xxxiii]
One of the most
[xxxiv]promising developments in
this area, the “religious lawyering movement,” examines the relevance of
religion to the practice of law, in the interest of demonstrating that religion
may serve to provide lawyers a valuable source of moral and ethical values.[xxxv]
In recent years, through the emergence of conferences, symposia, and law school
institutes, the movement has gained considerable prominence and many adherents.[xxxvi]
The establishment of the Pepperdine Institute on Law, Religion, and Ethics
represents an important step forward, not only for Pepperdine University and the
religious lawyering movement, but also, more broadly, for the exploration of an
increasingly significant area of legal ethics.
On the one hand, there may be a dualistic
conception that would set up a rigid barrier between [religious and
secular life], a conception that conceives of [a person’s] purely
natural life as intrinsically corrupt, that sees the religious as
established not upon the secular but despite it . . . . On the other
hand, we have a unified conception that stems from a deep-seated belief
that life is basically one, that the secular and religious aspects of
human experience are in fundamental harmony . . . . I think that the
attitude of [the] Torah is clearly aligned with the latter view . . . .
Our whole Weltanschauung, from eschatology to ethics, is firmly
grounded upon the profound conviction that the physical, the natural,
the secular, is not to be destroyed but to be sanctified. The Hala[c]ha
stresses not rejection but inclusion, not segregation but
transmutation . . . . The Torah is neither world-accepting nor
world-rejecting. It is world-redeeming.
A teamster in Berdichov was saying his
morning prayers, and at the same time, was greasing the wheels of his
wagon. He was indeed an interesting sight, praying with his
grease-covered hands, and townspeople snickered, “Look at this
ignoramus. He doesn’t know better than to grease his wagon wheels while
he is praying.” The great Rabbi Levi Yitchok then came along and said,
“Master of the universe, look at Your servant, the teamster. Even while
he is greasing his wagon wheels he is still praising Your great and holy
Name.”
When the codes authorize lawyers to
choose between emphasizing partisanship and important third party or
societal interests, lawyers’ natural [personal and economic] incentives
encourage them to select partisanship. Lawyers who make that choice can
readily justify their conduct as mandated by the code by claiming
adherence to the code provisions that call for zeal.
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