A widely held view on the purpose of criminal law is that it is designed to maintain social order. Assuming this view to be correct, how does criminal law achieve its purpose? The standard answer is by deterring crimes through the threat of penalties, and by incapacitating or rehabilitating criminals so that they cannot or will not engage in future crimes. Sociologists, however, have a somewhat different answer: criminal law maintains social order by branding deviant behavior as criminal. Society, it is argued, is constructed through opposition and contrast: it creates and preserves its identity, its distinct structure and unique shape, by emphasizing the differences between its own characteristics and practices and the characteristics and practices of the Other, the deviant. Deviance, in this view, is essentially a relative phenomenon. The definition of deviance, which changes from era to era and from place to place, is just that characteristic which society designates to establish, through it and in contrast to it, its identity and boundaries. Whatever the society, the deviant in that society is one who “represents the forces excluded by the group's boundaries,” informing society “as it were, what the evil looks like, what shapes the evil can assume.” In doing so, the deviant shows society “the differences between kinds of experience which belong within the group and kinds of experience which belong outside it.”

Because of the disparate character of these papers, we have decided that Professor Gewirth and I would throw the discussion open immediately to the audience.

Dr. Gewirth, I was curious that you ended up opposing laws, on the one side, and morality, on the other. And you brought them into relationship by making morality a question of whether or not to obey the law. When you described the laws to us, it seemed that you had practically thrown them into the kingdom of utter darkness. You say they are transitory, etc. I was wondering why you did not use, as a critique of law, some kind of legal principle like justice. And, on the other side, when you talked about morality, it turned out to be something very abstract, very philosophical, very theoretical, and having little to do with actual morals. So, I am interested in the question of the relation between morals, on the one side, and law and justice and wealth. You see, in presenting morality you give no guidance to the poor lawmaker. All you do is tell us to disregard his law when he does it wrong.

The purpose of this survey is to note important case law developments in the state and lower federal courts concerning religious liberty. Purposely omitted are the widely reported United States Supreme Court opinions, as well as cases where the Supreme Court has granted review during the 1993-94 term. The focus here is on significant or interesting cases that may otherwise escape broad attention. Only the facts and rationale of each decision is summarized. No editorial comment on the merits of these cases is intended.

The recent three-hour program on “Professional Responsibility and the Religious Traditions” at the annual meeting of the American Association of Law Schools (“AALS”), sponsored by the Section on Professional Responsibility and co-sponsored by the Section on Law and Religion, represents a milepost in the history of the religious lawyering movement and offers a valuable opportunity to reflect on that history. In 1998, only eight years ago, one of us defined the religious lawyering movement as “an emerging force” in legal ethics. In that short time, the movement has expanded dramatically and has received greater attention within the academy and the bar. It has developed the first institutional vehicles for disseminating and promoting conversations about religious lawyering, both among lawyers of the same faith and among lawyers of different faith traditions. Now the religious lawyering movement is increasingly confronting more complex and more difficult religious, legal and ethical issues; and is extending the religious lawyering conversation internationally.

A former police chief and a criminologist confirm a famous remark by Margaret Mead when they write: “The initiation of restorative reforms is often based upon the conversion of one key professional in a criminal justice agency.”

New Zealand district court judge Fred W.M. McElrea personalized this rule in his account of how he stumbled on a restorative procedure in the case of a young man in Auckland, who was a Maori and son of a bishop, and who confessed to the crime of robbing a woman's purse. She happened to be a Quaker, and she appeared in court as a gesture of friendship for the offender. When the time came for sentencing, McElrea wondered out loud if there were a way for the young man to be monitored, without imprisonment, by some competent person who knew him. At that, Douglas Mansil, local Presbyterian minister, also present in the courtroom, stood and volunteered his services. Mansil had been the longtime “streetwise” pastor of a congregation in that Auckland neighborhood, known for furnishing the courts with more than a few youth offenders. Together with the Quaker victim of the crime, he kept track of the young man and reported regularly to the court. It was the beginning of McElrea's dedication to restorative justice (RJ) for young offenders in New Zealand. He and other judiciary leaders pay tribute to the influence of Howard Zehr's visit to New Zealand (NZ) in 1994 and Zehr's book, Changing Lenses, which McElrea first read during a sabbatical leave at Cambridge University. Zehr's book and his work in the U.S. had great impact on New Zealand legal officials, many of whom, like McElrea, often give him credit for inspiring shifts to RJ in their thinking about law, judicial process, and ethics.

When Marie Failinger and I began to play with metaphors as we talked about the scroll to honor Tom Shaffer, well, we did consider and discard some. From that heap of castoffs, I want to begin big and tell you the clearest discard, the biggest miss: Tom as a peach of a man. The positive side of the image is roundness as an indicator of wholeness, of even feminine circularity, of integrity. The down side of roundness need not be spelled out in detail (and we certainly do not want to suggest fuzziness)… but there is that one lingering wild hare, the peach's suggestion of the Southern gentleman, that Atticus Finch or Walker Percy who never quite migrates into the contemporary scene. That Southern gentry anomaly is central to Tom, and the struggle with how he can almost redeem the notion of lawyer as gentleman is for me the story of Tom as round in the finest sense, like a magic circle cast by the best of the Spirit, gentle, true, deceptively radical, quietly if slowly revolutionary, and only just a little repetitious. (Consider the list of 274 of his publications we got in the conference materials—274! I certainly have not read all 274, but even within the ones I have, there is stuff I've seen more than once). Even that repetition becomes the mark of fidelity, however. For Tom is unwilling to leave even the anachronism, the gentleman lawyer, out of the circle into which he has invited a persistently motley crew of clients and friends and students and invisible rabbits (ask him about Elwood Dowd sometime).