A.H.M. Jones, the great British historian of the later Roman Empire, was once asked what difference conversion to Christianity made to Rome. His answer: None. Brutal gladiatorial contests continued to be held, slavery was not abolished, and cruel penalties were laid down for seemingly minor moral infractions. Thus, Jones reasoned, the actual impact of Christianity on secular Roman society is difficult to see. Jones's view, however, has not been universally shared, particularly when it comes to the Roman legal system. Biondo Biondi saw Christianity as bringing about “un profundo rivolgimento” in late Roman law, which had ramifications in many different areas. As a religion, Christianity differed in unmistakable ways from its pagan competitors, and it would be quite surprising if these differences did not have some impact on Roman law and society when Christianity was adopted as the official state religion. The late Roman era offers a fertile testing ground for the impact a nascent religion might have on a society and its legal institutions.

With the publication of After Virtue in 1981, Alasdair Maclntyre revolutionized the study of post-Enlightenment moral philosophy by insisting that it repent of its current pretensions to a view from eternity and confess its temporal roots in the long and motley history of human reflection about the good life. Almost a quarter of a century earlier, John T. Noonan, Jr., a young Harvard-trained legal scholar who possessed a doctorate in philosophy from Catholic University, had waged a similar battle against the widespread misconception of the medieval concept of usury as monolithic, self-contained, and immutable.

Working with medieval authors who were themselves largely insensitive to the idea of historicity, writing in the context of a pre-Vatican II Catholicism still imbued with the abstract and ahistorical spirit of nineteenth century neo-Thomism, Noonan demonstrated in his first book that the concept of usury was in fact a fusion of concrete theological, ethical, economic, and legal concerns which were not stagnant, but organically developing. In so doing, he gave Catholic Christianity a more adequate conception of its past. More than that, he gestured optimistically toward its future. Tracing how the absolute prohibition of usury, defined as any lending of money at interest, was circumscribed, attenuated, and finally abandoned by succeeding generations of moral theologians and canon lawyers, Noonan underscored that the Church could and did change its mind about important moral issues which were held to implicate unalterable strictures of the natural law. Revealing that an increased willingness on the part of moralists to acknowledge that moral experience of Christians professionally involved in the practices of commerce and banking had fueled the evolution of the usury doctrine in past centuries, Noonan nourished the hope for a stronger voice of lay experience in ecclesial discussions of moral issues throughout the years to come.

I first met John Noonan at a Law Review dinner when I was a year or so out of law school and he was a third year student. Chance placed us at the same table, and the conversation—naturally—proved to be more interesting than the speeches. When I came home and reported on the occasion to my wife, it developed that she was already acquainted with John Noonan. When they were teenagers, he had been a particularly suave and glamorous summer inhabitant of a beach resort where one of her friends also spent summers.

Not long after the Law Review dinner, John graduated and went to Washington, and we left Boston, first for New Jersey and then for Notre Dame. I heard nothing more of John until one day when Joe O'Meara, the formidable dean of the Notre Dame Law School, showed me an article from the 1955 volume of the Journal of Legal Education called Value References in the Teaching of Negligence. The author had looked at all the Torts casebooks he could find, and earlier editions of many of them; at all the relevant case write-ups from the Harvard Law Review and the Yale Law Journal; at a number of law school examinations; and at all the issue sheets used by Harvard's Board of Student Advisors in supervising their moot court, the Ames Competition. He had found the value concerns in great disarray, and not much relied on anyhow. It was clear that teaching about negligence involved analysis of rules and not much else. The author (of course, it was John) admitted reluctantly that neither philosophy nor theology nor social science provided any principles that would be of much use in deciding negligence cases, but he expressed a rather wistful hope that more facts might lead to a more effective application of values to these cases. “More facts” was to be a major distinguishing quality in the rest of his work.

In the early 1960's, when the winds of change began to blow freedom into southern Africa, the causes of Africa's poverty seemed obvious. Since the turn of the century, colonial regimes had systematically disinherited and disenfranchised the black majority. As a result, while the region enjoyed a wealth of natural resources and, in a number of areas, developed industries and infrastructure, the majority of the population lived at the edge of subsistence.

By the mid-1980's, only South Africa and Namibia still labored under minority or alien rule. Yet even where countries had shed colonialism twenty years earlier, most people endured poverty and powerlessness. Their leaders had come into government promising a radical redistribution of power and wealth. That did not occur. Instead, the region's economies remained largely stagnant and dependent on unstable foreign markets, and the distribution of income and political power remained highly skewed. Poverty and inequality continued because of the failure to use the legal order—that is, the laws and regulations and the behavior of the relevant implementing and law-making institutions—to transform economic and social relationships.

The religion of our father Abraham was the religion of a single believer. He was, as described by Thomas Jefferson, a sect of one person calling for recognition by the overwhelming majority. But even his descendants remained a tiny majority among the population of the area; they were aware of being a small people (Deut 7:7) in danger of being absorbed by the Canaanite culture in the neighborhood.

The danger of acculturation was felt not only from the majority, but equally felt from other minority cults and religions (Num. 33:55; Jos 23:13), whose religious practices set a negative example for Israel and its religion. The rule prohibiting any participation in foreign cults and marginalizing religious minorities in Israel's society (for example, Exod 34:11-17) presents itself as a conditio-sine-qua-non in the covenant with the God of Israel.

Those who have made an equally sedulous study of 1) American constitutional law and 2) religion—particularly New Testament theology—are immediately struck by the many similarities inherent in both the process and polemics of textual interpretation between them. The observation and description of these similarities have been the subjects of a relatively small yet proliferous corpus of comparisons and investigations, predominantly in law journals and monographs. Most constitutional legal scholars, not formally trained in and therefore unfamiliar with the arcana of theological hermeneutics and exegesis, earnestly join the jurisprudential debate over the “intent of the framers” and the creation by certain justices of the U.S. Supreme Court of new constitutional fundamental rights via substantive due process and/or the penumbra doctrine, without ever realizing the striking parallels in the debate between theologians about the original meaning and applicability of the New Testament canon to modern moral and religious problems.

President George H.W. Bush caused a few chuckles—and, more than likely, a few groans—when, out on the trail during the 1988 presidential campaign, he recalled being shot down over the South Pacific in World War II:

Mother, Dad, God, faith—“and the separation of church and state.” This train of thought probably strikes us as a bit absurd. And yet, it is entirely American. That “God” and “faith” could not be invoked by the future President, as “fundamental values,” without the addition of “the separation of church and state” speaks volumes about how we Americans think about the content and implications of religious freedom, our “first freedom.” Indeed, Professor Daniel Dreisbach observed not long ago that “[n]o metaphor in American letters has had a greater influence on law and policy than Thomas Jefferson's ‘wall of separation between church and state.’” For many Americans, this metaphor supplies—in Professor Philip Hamburger's words—the “authoritative interpretation” of the First Amendment's Religion Clauses; and “vast numbers of [us] have come to understand [our] religious freedom in terms of Jefferson's phrase. As a result, Jefferson's words often seem more familiar than the words of the First Amendment itself.”

Aviam Soifer said that Robert Cover's death left many of us with the feeling that a vital conversation had been interrupted in mid-sentence. What follows are notes for an unfinished conversation on the metaphor of law as bridge and the prophetic function of the judge. They are only preparatory background material. Their focus is upon some tough biblical texts, the kind that leave the mark of their infectious truculence upon those whom they irresistibly engage.

And he said,

“Go and say to this people:

‘Hear and hear, but do not understand;

See and see, but do not perceive.’

Make the heart of this people fat,

and their ears heavy,

and shut their eyes;

lest they see with their eyes,

and hear with their ears,

and understand with their hearts,

and turn and be healed.