What Doth The Lord Require Of Thee

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What Doth The Lord Require Of Thee?
by Thomas A. Wiseman, Jr.

[Thomas A. Wiseman, Jr. is U.S. District Judge for the Middle District of Tennessee. He earned the B.A. and J.D. degrees from Vanderbilt University and the LL.M. degree from the University of Virginia. This essay was presented by Judge Wiseman at a Faith and Law Symposium and was then copyrighted and published in the Law Review of Texas Tech University. It is used here by permission of the author and the Texas Tech Law Review.]

As a Methodist by birth and a Presbyterian by marriage, religion has played an important role in my life since childhood. As a rational and curious being, I have experienced agnosticism and doubt, only in maturity to resolve that doubt through faith. As a lawyer by profession and a Federal Judge by political good fortune, I have had a unique opportunity to apply that faith and that religious training to human affairs and, hopefully, to be an influence for some good in the implementation of God`s plan for the world.

How does my religion impact the performance of my job as a judge? My answer may be more the ideal than real, as is the case with most sinners,

The Hebrew Bible speaks eloquently of desirable characteristics of judges and gives specific instructions on how to perform the job. "Moreover choose able men from all the people, such as fear God, men who are trustworthy and who hate a bribe "You shall appoint judges and officers in all your towns … and they shall judge the people with righteous judgment. You shall not pervert justice; you shall not show partiality; and you shall not take a bribe,. ,,"2 "You shall do no injustice in judgment; you shall not be partial to the poor or defer to the great, but in righteousness shall you judge your neighbor."3

The admonition of Micah is especially poignant to a lawyer or a judge. Micah asked the rhetorical question: "What must I do to please the Lord?" His answer: "He hath shewed thee, 0 man, what is good; and what doth the Lord require of thee, but to do justly, and to love mercy, and to walk humbly with thy God?"~ I have adopted this as a personal creed, but experience occasional conflict between it and the secular demands of my job. I will explore and try to resolve those conflicts here.

Doing Justly

What does it mean to "do justly?" Aristotle said it was the practice of virtue toward others.5 A dictionary definition of "just" is "the quality or characteristic of being impartial or fair; fairness, integrity, honesty; the principle or ideal of just dealing or right action."6 Another dictionary definition is "acting in conformity with what is morally right or good."7 None of these is very precise. One abstraction is defined by four or five others.

Legitimate debate could be made over what is air, what is "right," what is "honest~~ or good" in many daily examples of human interaction. Where does one look for a more precise definition? As is often the case, it is easier to define something in terms of what it is not. Examples of what is unjust, of injustices, of moral wrongs and unfair actions, come immediately to mind.

The prophet Amos condemned the people of Israel for their sins and rebellion against God. He indicted them for their violation of the most elementary principle of righteousness-their denial of justice to the poor. He cited the fraudulent commercial practices of the day such as using smaller than proper measures for selling the wheat, stretching the size of the measure for the money, selling the refuse of the wheat, and generally taking commercial advantage of the poor and needy.8 In some of the most stirring language of the Bible, Amos called for judgment to "run down as waters, and righteousness as a mighty stream."9

There was a time in the law when we had a doctrine of caveat emptor-"let the buyer beware." The law simply said that it was not the place of government to hold the buyer`s hand in the marketplace. The day of caveat emptor has been replaced by the age of consumerism and Ralph Nader and his "raiders." The Federal Trade Commission and the Food and Drug Administration would get into the act very quickly if you started selling the refuse of the wheat, or making the ephah small or the shekel great. The examples of Amos are still valid, however, in defining the principles of commercial fair dealing integral to "doing justly."

But Micah`s injunction goes beyond what the law requires. For a Christian, it is not enough to do only what is legal. We must do what is morally right, what is honest, what is just. Jesus Christ both simplified and complicated the inquiry into what is just. He turned the searchlight inward and made the inquiry almost totally subjective. If you would like someone to treat you in a particular way, that is the way you should treat him. If there is something you would not like someone to do to you, then you must not do it to her. Christ simplified the law and the prophets into this one golden rule.[10] But it also complicates the definition in that it puts the burden of definition back squarely on each of us.

Under this "golden rule" formulation, one must look to his own conscience, his own sense of right and wrong, put himself in the other person`s ~hoes and make that decision. One must find that definition of justice, of what it means to do justly, to a large extent, within himself.

If applied this method of decision making to my daily job of judging, I would confirm the accusations of the Legal Realists that the law is what the judge says it is; I would support the cynicism of critical legal studies devotees that it is only the law because a judge says it. The extent to which each of us participates in the Divine Reason, if at all, certainly varies. Judicial decisions based only on the value choices of judges is judicial activism, judicial anarchy at its worst. Justice Cardozo put it well:

The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knighterrant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in the social life." Wide enough in all conscience is the field of discretion that remains."

The great theologian, Paul Tillich, describes the usual understanding of justice as proportional, that is everything receiving proportionally what it deserves, either positively or negatively. Attributive justice gives to beings the tribute to which they are-and claim to be entitled. Distributive justice is economic in that it gives to each the proportion of goods due; retributive justice gives to each negatively what is due.`2 Tillich goes on to suggest that the justice of God is more than proportional. God changes the proportion in order to fulfill those who, according to strict proportionality, would be left unfulfilled. Divine justice may appear to be plainly unjust-it justifies the unjust. As the Apostle Paul explained, it is the paradox of justification by grace through faith.`3

Criminal sentencing sometimes offers the opportunity to apply this disproportional justice motivated by a desire to rehabilitate an offender. Those opportunities are not as frequent now as they once were. The express intention of Congress to restrain this kind of action on the part of Federal judges spawned the U.S. Sentencing Guidelines.`4 The Congress decided that too many "bleeding heart" federal judges were being too soft on crime. The resulting legislation, along with the guidelines promulgated by the Sentencing Commission, effectively removed much of the sentencing discretion federal judges previously exercised.`5 The rehabilitation model was rejected in favor of the punishment model.

Preguidelines, I put about half of the people who came before me for sentencing on supervised probation. The rate of recidivism was less than eight percent;`6 the cost of supervision was about one tenth that of incarceration;`7 persons on supervision had jobs and could pay restitution, support their families and stay off welfare. Perhaps, after we have built several thousand more prison beds`8 and warehoused several thousand more nonviolent offenders for lengthy sentences,`9 the expense will be so great that we will be forced to rethink the problem and the current "solution."~~ Perhaps we will try some new or old forms of alternatives to incarceration, such as supervised probation, suspended sentences, community service, home detention, etc. Perhaps we will once again put some faith in the rehabilitative model, and pull back a little from the "just deserts" model. Perhaps we will once again legitimate disproportional justice. This is the one area of my job where that which the law requires of me sometimes differs from what I believe, religiously and philosophically, to be the right thing to do.

Loving Mercy

The second injunction in Micah`s code of conduct is like Tillich`s disproportional justice. We are required to "love mercy." First, we were required to give every person at least his or her due, that is to do justly. But now he goes further and tells us to be merciful, and give every person more than what is due. This instruction did not begin or end with Micah. Mercy is an attribute ascribed to God throughout Judeo-Christian theology. In Moses` conversation with God in the book of Exodus, God said, "I will show mercy. "~` In Psalm 145 God is described as "gracious and full of compassion; slow to anger and of great mercy."22 In the Luke version of the Beatitudes, Christ said: "Be merciful, even as your Father is merciful."23

Some of the most beautiful and powerful poetic lines of our language have been devoted to the quality of mercy. In the Merchant of Venice, Shakespeare has Portia describe mercy to Shylock:

The quality of mercy is not strained,
It droppeth as the gentle rain from heaven
Upon the place beneath;
It is twice blessed.
It blesseth him that gives and him that takes….
It is an attribute to God himself;
And earthly power doth then show likest God`s,
When mercy seasons justice.
Therefore, Jew,
Though justice be thy plea, consider this,
That in the course of justice,
None of us should see salvation;
We do pray for mercy,
And that same prayer doth teach us all to render
The deeds of mercy.24

In appropriate circumstances, mercy can and should enter into the sentencing matrix. But there are other circumstances in which a judge should be merciful. Kindness in a situation where a person cannot fight back is mercy. The way I treat a witness or a lawyer, the slack I cut a young lawyer making his first appearance, the way I treat my staff-these are some of the ways in which I personally have violated the second part of Micah`s injunction.

Walking Humbly

The final side of Micah`s triangular formula of requirements is to "walk humbly with thy God."Most lawyers l know would say that a humble federal judge is an oxymoron; and they are probably right. I will never forget the evening of my swearing in as a federal judge. Some of my friends had given a nice party for us, and my wife and I, still basking in the glow of the day, were getting ready for bed. She looked at me and said, "All of our married life I have heard you cuss federal judges. Now you are one and you expect me to sleep with you?"

Recognition of one`s capacity for error is an aspect of humility. Professionally, the appellate courts remind me of this capacity frequently. I do what I think is right, and then they do what they think is right. The system says they are right because they are last, but sometimes they are right because I was wrong. A lawyer who refuses to analyze and recognize any merit in the positions of his opponent lessens his ability to meet and overcome those positions, and lessens the likelihood of an advantageous settlement. In the act of judging, it is indeed a rare occurrence when all the right is on one side, when the correct judgment is crystal clear.

When we measure our five or six feet of height against the expanse of space and the universe, when we compare our relatively short lifetime with the infinity of time and existence, it is difficult to feel overly important. Yet my religious tradition teaches me that I am a child and heir of God, that I am a chosen beneficiary of the New Covenant in Jesus Christ. To have been chosen must mean that my life has meaning and significance. I am important.

I use an analogy that helps me understand this apparent anomaly between relative insignificance and God-chosen importance. I think of some of the Civil War battlefield cycloramas or some of the great murals of the art world. The eye can only examine the parts, and these parts must be put together in the mind. In like manner, the entirety of God`s plan for the world is a giant, but yet incomplete mural. Only God knows what the final picture will look like, or can comprehend how all of the parts fit together. My life is a small dot of the brush on that mural. Although it seems infinitesimally small and insignificant when the whole is contemplated, still it is an essential and integrated part of the whole. It is my responsibility to make my dot of the brush as beautiful as I possibly can in contributing to the whole. Thought of in this way, each of us is a very, very small part, but a very important part of God`s plan. This realization makes for an humble self-esteem.

My Reformed Tradition also demands of me that I continually be engaged in the reformation process. My vocation in the law has afforded a unique opportunity to be engaged, to try to make a difference. Rarely has there been a divergence between my religious belief and the requirements of my profession. Legal professionalism is the rendition of a service. Secondarily, it is a source of livelihood. Viewed in this way, the practice of law, the practice of judging, can be faith in action. It can be part of the divine artwork.

Endnotes

1 Exodus 18:2 1 (Revised Standard). Unless otherwise indicated, all subsequent citations to the Bible are to the Revised Standard version.

2Deuteronomy 16:18.

3Leviticus 19:15.

4Micah 6:8 (King James).

5 Aristotle, the Nicomachean Ethics, Book V 103 (D.P. Chase trans., 1915).

6 Webster`s New Collegiate Dictionary 628 (1976).

7 Id.

8 Amos 8: 4-6 (King James).

9 Amos 5:24 (King James).

10 Therefore all things whatsoever ye would that men should do to you, do ye even so to them: for this is the law and the prophets." Matthew 7:12 (King James).

11 Benjamin N. Cardozo, Nature of the Judicial Process 141 (1921).

l2 Paul Tillich, Love, Power, and Justice: Ontonological Analyses and Ethical Applications 63-66 (1954).

13 `We who are Jews by nature, and not sinners of the Gentiles, Knowing that a man is not justified by the works of the law, but by the faith of Jesus Christ, even we have believed in Jesus Christ, that we might be justified by the faith of Christ, and not by the works of the law: for by the works of the law shall no flesh be justified. But if, while we seek to be justified by Christ, we ourselves also are found sinners, is therefore Christ the minister to sin? God forbid. For if I build again the things which I destroyed, I make myself a transgressor. For I through the law, am dead to the law, that I might live unto God. I am crucified with Christ; nevertheless I live; yet not I, but Christ liveth in me: and the life which I now live in the flesh I live by the faith of the Son of God, who loved me, and gave himself for me. I do not frustrate the grace of God: for if righteousness come by the law, then Christ is dead in vain. Galatians 2:15-21 (King James).

14 The Commission shall insure that the guidelines reflect the fact that, in many cases, current sentences do not accurately reflect the seriousness of the offense." 28 U.S.C. 994(m)(Supp. V 1993).

15 U.S. Sentencing Common, Guidelines Manual 7, 1A.4(d)(1994). Under pre-guidelines sentencing practice, courts sentenced to probation an inappropriately high percentage of offenders guilty of certain economic crimes, such as theft, tax evasion, antitrust offenses, insider trading, fraud and embezzlement, that in the Commission`s view are "serious." The Commission`s solution to this problem has been to write guidelines that classify as serious many offenses for which probation previously was frequently given and provide for at least a short period of imprisonment in such cases.

16 Recidivism for this purpose is defined as the requesting of a warrant alleging violation of probation/parole and revocation of supervision. Warrant request might be the result of technical violations, rather than new criminal activity.

17 Current estimates from the Administrative Office, United States Courts, dated March 10, 1995, are: monthly cost of incarceration-$ 1779.33, community confinement-$1 183.08, and probation-$ 195.30. Memorandum from Eunice R. Holt Jones, Chief, Probation and Pretrial Services Division, Administrative Office of the United States Courts, to Chief Probation Officers (Mar. 10, 1995)(on file with author).

18 In 1993, state and federal systems added 42,899 new beds to prison facilities at a cost of $1,976,682,000.00. Between 1988 and 1993 there were 302 new prisons opened in the United States. Camille G. Camp & George M. Camp, The Corrections Yearbook 1994 (Criminal Justice Institute).

19In 1992, of 33,622 convicted offenders sentenced to prison in the federal courts, only 2,618 or 7.7% were for violent crimes. U.S. Bureau of the Census, Statistical ABS. Of the U.S. 212 (ll4thed. 1994).

20 In 1970 we had 196,429 adult prisoners incarcerated for a rate of 96.7 per 100,000 population. In 1992 that number had grown to 847,271, a 431% increase. The 1992 figure represents 330.2 persons per 100,000 population, more than any other country in the Western world except Russia. Camp & Camp, supra note 18.

21Exodus 33:19 (King James).

22 Psalms 145:8 (King James).

23 Luke 6:36.

24William Shakespeare, Merchant of Venice Act 4, sc 1 (John Russel Brown ed., Harvard U.P. 1959).