Jesus' Legal Theory—A Rabbinic Reading opens with a startling claim. The increasing number of legal scholars who have begun exploring the relationship between Christianity and American law in the past several years have neglected to consider the insights of Jesus himself. “[N]otably absent from this literature,” Professor Saiman writes, “is any extensive examination of Jesus, and his views about jurisprudence and legal theory. Despite the overall diversity of his writings, there is little discussion about what Jesus thought about law, lawyers, legal rules and the legal order.” What, the article asks, does Jesus' own legal theory look like?

The Western legal tradition was formed in the great revolutionary upheaval of the late eleventh and early twelfth century, when the papacy established its independence from imperial and royal control and its political and legal supremacy over the clergy of Western Christendom. It was then that there was first developed the modern Western belief in the autonomy of law, its professional character, its integrity both as a system of institutions and as a body of learning, its capacity for organic growth over generations and centuries, its conscious historicity, and its ultimate supremacy over political authorities. It was then, too, that the modern Western concept of subjective rights was first adumbrated—the rights of corporate bodies and persons to property and to liberties against other corporate bodies and persons, and even against superiors.

Politically, the Western legal tradition was rooted in the dualism of ecclesiastical and secular authorities and in the pluralism of secular polities—kingdoms and principalities, feudal domains, autonomous cities—within the ecclesiastical unity. Theologically, it was rooted in a concept of salvation, and of law as part of God's plan of salvation.

A few years ago I visited Nicaragua as part of a program sponsored by my university. We traveled by bus to the coffee country outside of Matagalpa and met with members of the Union of Organized Women of Yasica Sur, in a community center the women had built in a hollow beside the road. The president of the group described how thirty years ago, she and a small group of women organized to improve the supply of drinking water for their children. Over time, the women moved from providing water to providing schools and bridges, and then affordable medical care and medicines. The organization now has about one thousand members and is one of the most effective in the region. Yet the needs are still great.

Many of the women had walked for over an hour in their best clothes to visit with us. As we listened to them, I heard also my aunts and grandmothers, who did not look so very different from these women, who were just as smart, determined and hard-working, and whose lives were not so very different, except their crop was not coffee: it was sugarcane and pineapple. The sense of connection was shortlived, however. There was a question-and-answer period, and the president asked us what we did at home. One of my colleagues shared she was an environmental engineer, who specialized in lakes. The president smiled and said, “We could use you here.” Then I told her I taught international law. The president listened for the translation, regarded me and said, “I am not educated. Your work is too high for me.” So much for my solidarity with the Union of Organized Women of Yasica Sur.

The contemporary treatment of rape in the penal codes of Muslim nations has come under increasing scrutiny over the last two decades, as several high-profile cases have arisen in which women have claimed sexual assault but been unable to bring sufficient proof of non-consent. In some cases, claimants have subsequently been punished for fornication (zinā) because their accusations were seen as constituting confession to consensual illicit sex, while in other cases, a resulting pregnancy has been taken as evidence of the same. These cases have illustrated the particular problems that stem from defining rape as a coercive variant of fornication, or zinā.

These cases have largely arisen in the context of national efforts to Islamize the legal code by bringing laws into line with perceived sharī'a guidelines. This slew of cases has prompted journalists, human rights groups and Muslim reformers to ask whether contemporary “Islamic” rape laws are really continuous with the classical Islamic juristic tradition, or whether they may in fact represent distortions of that tradition. A central point of debate has been over whether Islamic juristic discourse truly placed rape—that is, a man's unlawful sexual intercourse with a woman against her will—under the category of zinā, or not.

Much that is intriguing about medieval modes of proof lies in the tension that existed within them. In the practices of the ordeals, compurgation or wager of law and judicial duel, faith mingled with superstition, justice with mercy, divine providence with human manipulation. When history was conceived as “wholly a uniform drift towards better things,” these practices were proclaimed as undoubtedly barbaric, irrational, and “the most extravagant and preposterous.” Later historians offered functionalist interpretations; they showed how medieval institutions of proof reflected the living conditions of the time or served legitimate socio-political functions. Suitable as their creed is the charitable dictum of Baron Bramwell that “because the world gets wiser as it gets older, … it was [not therefore] foolish before.” A related body of scholarship evaluates the methods of proof as means of fact-finding, and supports the conclusion that they were not as ineffective as they may seem. Their epistemic function, as we will see, has been defended along different naturalistic lines.

Since the Williamsburg Charter deals with the role of religion in American public life, I'm reminded of a story about the clergyman who began his Sunday morning sermon by asking “O Lord, have you seen the New York Times today?”

It is almost a given that we can't understand the present unless we understand the past. Understanding religious liberty today, and its comparative absence in the past, is no exception. Since we're in Maryland, let's take a look at some of the history in this state, concerning the religious liberty we all cherish. Long before American independence, in 1649, Maryland passed its Act of Toleration. In keeping with the spirit of the time, however, toleration was granted only to Trinitarian Christians. That same law actually prescribed the death penalty for any person who denied that Jesus was the son of God or who denied the Holy Trinity. Maryland's first constitution, adopted in 1776, guaranteed the right to hold public office to all who subscribed to a “declaration of belief in the Christian religion.” In 1801, Thomas Jefferson appointed Reuben Etting, a Jew from Baltimore, to the post of United States Marshal for Maryland. Yet, at that very time, the fact that Etting was a Jew meant that he was barred under the Maryland constitution from holding any state office.