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- By Rose Teteki Abbey, K. C. Abraham, David Tuesday Adamo, LeRoy H. Aden, Efrain Agosto, Victor Aguilan, Gillian T. W. Ahlgren, Charanjit Kaur AjitSingh, Dorothy B E A Akoto, Giuseppe Alberigo, Daniel E. Albrecht, Ruth Albrecht, Daniel O. Aleshire, Urs Altermatt, Anand Amaladass, Michael Amaladoss, James N. Amanze, Lesley G. Anderson, Thomas C. Anderson, Victor Anderson, Hope S. Antone, María Pilar Aquino, Paula Arai, Victorio Araya Guillén, S. Wesley Ariarajah, Ellen T. Armour, Brett Gregory Armstrong, Atsuhiro Asano, Naim Stifan Ateek, Mahmoud Ayoub, John Alembillah Azumah, Mercedes L. García Bachmann, Irena Backus, J. Wayne Baker, Mieke Bal, Lewis V. Baldwin, William Barbieri, António Barbosa da Silva, David Basinger, Bolaji Olukemi Bateye, Oswald Bayer, Daniel H. Bays, Rosalie Beck, Nancy Elizabeth Bedford, Guy-Thomas Bedouelle, Chorbishop Seely Beggiani, Wolfgang Behringer, Christopher M. Bellitto, Byard Bennett, Harold V. Bennett, Teresa Berger, Miguel A. Bernad, Henley Bernard, Alan E. Bernstein, Jon L. Berquist, Johannes Beutler, Ana María Bidegain, Matthew P. Binkewicz, Jennifer Bird, Joseph Blenkinsopp, Dmytro Bondarenko, Paulo Bonfatti, Riet en Pim Bons-Storm, Jessica A. Boon, Marcus J. Borg, Mark Bosco, Peter C. Bouteneff, François Bovon, William D. Bowman, Paul S. Boyer, David Brakke, Richard E. Brantley, Marcus Braybrooke, Ian Breward, Ênio José da Costa Brito, Jewel Spears Brooker, Johannes Brosseder, Nicholas Canfield Read Brown, Robert F. Brown, Pamela K. Brubaker, Walter Brueggemann, Bishop Colin O. Buchanan, Stanley M. Burgess, Amy Nelson Burnett, J. Patout Burns, David B. Burrell, David Buttrick, James P. Byrd, Lavinia Byrne, Gerado Caetano, Marcos Caldas, Alkiviadis Calivas, William J. Callahan, Salvatore Calomino, Euan K. Cameron, William S. Campbell, Marcelo Ayres Camurça, Daniel F. Caner, Paul E. Capetz, Carlos F. Cardoza-Orlandi, Patrick W. Carey, Barbara Carvill, Hal Cauthron, Subhadra Mitra Channa, Mark D. 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Yee, Viktor Yelensky, Yeo Khiok-Khng, Gustav K. K. Yeung, Angela Yiu, Amos Yong, Yong Ting Jin, You Bin, Youhanna Nessim Youssef, Eliana Yunes, Robert Michael Zaller, Valarie H. Ziegler, Barbara Brown Zikmund, Joyce Ann Zimmerman, Aurora Zlotnik, Zhuo Xinping
- Edited by Daniel Patte, Vanderbilt University, Tennessee
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- The Cambridge Dictionary of Christianity
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- 05 August 2012
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- 20 September 2010, pp xi-xliv
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Appendix: Taxonomy of Headings: The Lawes and Libertyes of Massachusetts (Discussed in Chapter 1)
- Steve Sheppard, University of Arkansas
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- I Do Solemnly Swear
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- 05 June 2012
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- 27 April 2009, pp 267-270
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Summary
OVERVIEW
The facsimile has 61 pages, including a 2-page introduction and 59 pages of text, of which one-third of page 1 is a statement we would now call a claim to due process of law, and the last 4½ pages are oaths. There are 54 lines per page. On page 1 there are 50 lines, and on page 55, there are 29. Each heading is given one line, and there are 122 headings. Thus, 53 pages at 54 lines each, plus 36, plus 29, less the 122 lines for headings, suggests that the code has about 2,820 lines. Certain of the entries have prefatory language, which is not discounted. Blank lines in a single entry are rare but are counted here.
The taxonomy here is quite rough. Headings are grouped into eleven categories, which were framed in order to present them in rough analogy to modern American categories of law. In attempting to place each heading into a single summary category, preference was given to views of the legal relationship of such headings that would be meaningful to a modern lawyer. The categories created are Commonwealth, Rights of the Person, Law of the Person, Religion, Crime, Court Procedures, Officials, Obligation & Oaths (not counting oath texts), Property, Debts & Collection, Commerce, Licenses, and Taxes, and Natural Resources.
6 - Breaching Obligations
- Steve Sheppard, University of Arkansas
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- I Do Solemnly Swear
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“But stay,” someone will object, “when the prize is very great, there is excuse for doing wrong.”…
Work out your own ideas and sift your thoughts so as to see what conception and idea of a good man they contain. Pray, tell me, does it coincide with the character of your good man to lie for his own profit, to slander, to overreach, to deceive?…What is there that your so-called expediency can bring to you that will compensate for what it can take away, if it steals from you the name of a “good man” and causes you to lose your sense of honour and justice? For what difference does it make whether a man is actually transformed into a beast or whether, keeping the outward appearance of a man, he has the savage nature of a beast within?
Cicero, On Duties, Book III, Chapter XXLegal officials will breach their duties. The duties are too many, too conflicting, and too hard. What matters is how the individual official decides what to do and what not to do in an imperfect world in which some measure of failure is certain.
Dirty hands, the longstanding label for the impossibility of an official's satisfying all obligations of office, cannot, however, excuse the official from the duties themselves, nor can it justify failures of morality or illegality.
Acknowledgments
- Steve Sheppard, University of Arkansas
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- I Do Solemnly Swear
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- 27 April 2009, pp xxvii-xxviii
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5 - Patterns of Relationship between Legal and Moral Obligations
- Steve Sheppard, University of Arkansas
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- I Do Solemnly Swear
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- 27 April 2009, pp 179-202
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Thus it is the error of men who are not strictly upright to seize upon something that seems to be expedient and straightway to dissociate that from the question of moral right. To this error the assassin's dagger, the poisoned cup, the forged wills owe their origin; this gives rise to theft, embezzlement of public funds, exploitation and plundering of provincials and citizens; this engenders also the lust for excessive wealth, for despotic power, and finally for making oneself king even in the midst of a free people; and anything more atrocious or repulsive than such a passion cannot be conceived. For with a false perspective they see the material rewards but not the punishment – I do not mean the penalty of the law, which they often escape, but the heaviest penalty of all, their own demoralization.
Cicero, On Duties, Book III, Chapter VIIIf the obligations for an official to act are derived from both legal and nonlegal sources, then there will be at least some recurring patterns of interaction among the resulting obligations. This interaction sometimes presents an official with choices, particularly when different obligations would require inconsistent conduct. Any given choice can be quite complex, resulting from a variety of reasons or instincts that apply in varying degrees. The interplay among these obligations could be so diverse that a complete analysis of any given action might not be meaningful, but the interplay may still be examined, to some extent, by considering the relationships among obligations for an official to act, when some of those reasons arise from law and some from morality.
7 - Tools for the Trade: Maxims and Fallacies
- Steve Sheppard, University of Arkansas
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- I Do Solemnly Swear
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Indeed it is not an easy matter to be really concerned with other people's affairs.…Nevertheless, when things turn out for our own good or ill, we realize it more fully and feel it more deeply than when the same things happen to others and we see them only, as it were, in the far distance; and for this reason we judge their case differently from our own. It is, therefore, an excellent rule that they give who bid us not to do a thing, when there is a doubt whether it be right or wrong; for righteousness shines with a brilliance of its own, but doubt is a sign that we are thinking of a possible wrong.
Cicero, On Duties, Book I, Chapter IXHow should officials use their instincts for right and wrong, their understandings of their moral obligations? Throughout this book, in which we have asked who are officials, what are the stakes of others in their acts, what obligations are required other than law, what moral obligations relate to legal office, how do obligations affect one another, and what is the meaning of breach, the problem of how do it has lurked just beneath the surface. There is, to be sure, a gap between describing duties and applying them. The law must be seen by the people to be fair, and the officials must work to achieve fairness for those who hold the stakes, if they are to retain the trust of the people subject to the law or to achieve the official aims of the law itself.
I Do Solemnly Swear
- The Moral Obligations of Legal Officials
- Steve Sheppard
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- 27 April 2009
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What should the people expect from their legal officials? This book asks whether officials can be moral and still follow the law, answering that the law requires them to do so. It revives the idea of the good official - the good lawyer, the good judge, the good president, the good legislator - that guided Cicero and Washington and that we seem to have forgotten. Based on stories and law cases from America's founding to the present, this book examines what is good and right in law and why officials must care. This overview of official duties, from oaths to the law itself, explains how morals and law work together to create freedom and justice, and it provides useful maxims to argue for the right answer in hard cases. Important for scholars but useful for lawyers and readable by anybody, this book explains how American law ought to work.
Frontmatter
- Steve Sheppard, University of Arkansas
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Epilogue: What the Official Ought to Do: Law and Justice
- Steve Sheppard, University of Arkansas
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Summary
Consider again the scene described in the Introduction. When Sir Edward Coke spoke to James I, he believed he knew exactly what a judge was to do. The judge was independently to exercise the powers of the law according to the restraints the law itself imposed, and according to the dictates of reason and right. Such decisions were then to be discussed and criticized by other officials, and the good decisions were to be followed and the poor ones rejected.
In the century past, we have grown accustomed to ignoring the problems of moral action, of the good and the right, so much so that to speak of official morality seems quaint or foolish. We have grown accustomed to the Phipses of our world using office for personal advantage and to the smugness of the Stoughtons, and we accept the thoughtful service of the Sewalls and, thankfully, the faithful service of the Joneses. We have learned to accept our world as governed by their laws, and we have come to believe the people have no recourse but a limited ability of political reaction.
It is therefore no surprise if the tools by which such moral assessment of official conduct can be made have grown unfamiliar. We lack a contemporary vocabulary to sort our views of the modern successors to Jones and Sewall from those of Stoughton and Phips, and we fall back on judgment of a result as right or wrong, or we fall into a partisan game of preference for our champions and resentment of their opponents.
Contents
- Steve Sheppard, University of Arkansas
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- I Do Solemnly Swear
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- 27 April 2009, pp vii-xiv
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2 - The Stakes: The Interests of Others in Official Actions
- Steve Sheppard, University of Arkansas
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- 27 April 2009, pp 49-101
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Those who propose to take charge of the affairs of government should not fail to remember two of Plato's rules: first, to keep the good of the people so clearly in view that regardless of their own interests they will make their every action conform to that; second, to care for the welfare of the whole body politic and not in serving the interests of some one party to betray the rest.
Cicero, On Duties, Book I, Chapter XXVChapter 1 presented one way to understand the law as the result of the actions of officials, in which the law is an archive of rules created by past officials, applied in a current culture of official expectation and practice, in which individual officials carry out their offices with sole discretion yet as part of a corporate whole. A working definition of the official follows from that, which is both formal and functional: an official of the law is any person who holds an office that is given authority by law to act in a way that can alter the opportunities or condition of another person through the apparatus of the legal system. That is hardly a revelation, but it is a necessary foundation for asking what interests different people have in the actions that are taken by anyone holding that office.
There are two broad answers. The first is that the law requires that others care about officials' actions because others must do what officials say.
Preface: Moral Officials, Retail Justice, and Three Caveats
- Steve Sheppard, University of Arkansas
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This book examines a very basic idea: Officials must be moral, not just legal. In other words, legal officials ought to carry out their offices according to moral obligations, not just narrowly defined legal rules.
This idea is not popular in the United States: many people do not believe it, and many more are scared by it. In the media and cafe discussion, the idea spooks the left, who think it is code for religious judges, school boards, and legislators to stealthily bend the law to ban abortion, lead forced prayer in schools, arrest homosexuals, and tax the poor while ending liberty, community, and rights. And it scares the right, who think it is code for liberal feminist Black activists, who will coddle terrorists, immigrants, homosexuals, and the homeless while trampling freedom, property, and rights. Both the left and the right worry about a White House claiming ever greater powers, not least through a perpetual wartime license, using the language of moral certainty.
Meanwhile, academics and lawyers mistrust the whole idea of morality, in particular the idea of morality in the law. American society has changed from the days when Abraham Lincoln could argue with Stephen Douglas that the very bases of the law must be moral. We don't trust “morality” until we know whose morality is under discussion. Morality is too contentious and unpredictable, and we have lost our common vocabulary for talking about it.
3 - Officials' Obligations Arise from More Than the Law Alone
- Steve Sheppard, University of Arkansas
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- I Do Solemnly Swear
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- 05 June 2012
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- 27 April 2009, pp 102-123
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Summary
For no phase of life, whether public or private, whether in business or in the home, whether one is working on what concerns oneself alone or dealing with another, can be without its moral duty; on the discharge of such duties depends all that is morally right, and on their neglect all that is morally wrong in life.
Cicero, On Duties, Book 1, Chapter 2Having considered one view of what officials are, one in which the discretion to act is within a complex array of boundaries, we then considered some of the pervasive effects of officials' actions in the lives of others. The question now is whether there are meaningful arguments that the officials must exercise their discretion with such effects according to anything more than law or personal whimsy. This chapter examines that question and finds several independent sources of obligation binding officials that arise beyond the specific rules of law and the personal whims of the individual.
First, the very nature of the law demands that the individual act from a moral foundation beyond the law itself. This demand is explicit in the requirements and forms of oaths that are essential for any official to accept the powers of office, and it is inherent in the structure of the legal system itself. Second, there is no meaningful basis for believing, really, that officials are not supposed to be right or good, or that they are somehow exempt from the general obligations of moral behavior in society.
Index
- Steve Sheppard, University of Arkansas
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- I Do Solemnly Swear
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- 05 June 2012
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- 27 April 2009, pp 271-276
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Introduction: Seven Questions about What Is Fit for an Official to Do
- Steve Sheppard, University of Arkansas
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- I Do Solemnly Swear
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- 05 June 2012
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- 27 April 2009, pp 1-7
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In the early 1600s, America was young, and England was enjoying the golden age of its common law. This was an important time for what has become the law of the United States. England was in transition from the feudal to the modern order; the economy was driven less by produce from ancestral lands and more by money, trade, colonies, and technology. The monarchy was becoming more bureaucratic, and the English law courts and Parliament, which had long been more independent of the Crown than were their counterparts on the continent, asserted again and again their authority as the guardian of the liberties of the subject. The colonists leaving England for America brought with them these models of state and law and these ideas of legal order.
The great expositor of these ideas was the English lawyer, judge, and parliamentary leader Sir Edward Coke, who had consolidated the powers of the courts and written the case reports and textbook institutes that would be brought to American shores, rooting there a notion of what would later be called the Rule of Law. In one of this notion's first tests, King James I of England asked Coke whether he would submit to hearing the king's opinion before deciding a case. Coke refused, replying he would “do that which should be fit for a judge to do.”
4 - The Moral Obligations of Legal Officials
- Steve Sheppard, University of Arkansas
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- I Do Solemnly Swear
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- 05 June 2012
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- 27 April 2009, pp 124-178
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The first office of justice is to keep one man from doing harm to another, unless provoked by wrong; and the next is to lead men to use common possessions for the common interests, private property for their own.…
The foundation of justice, moreover, is good faith; – that is, truth and fidelity to promises and agreements.…There are, on the other hand, two kinds of injustice – the one, on the part of those who inflict wrong, the other on the part of those who, when they can, do not shield from wrong those upon whom it is being inflicted.
Cicero, On Duties, Book I, Chapter VII.If one accepts that officials have obligations to use their discretion according to principles that arise from anything other than the law, then the content of those principles must be quite important. Indeed, you might accept the idea that there are principles that a legal official must follow, even if you rejected all of the arguments to this point in this book.
Attempting to sort out such principles is complicated. It is hard sometimes to know which among the voices clamoring for influence that one must hear. And, even when an individual has a fairly clear view of what must be done, if the individual also has a healthy sense of skepticism, there is the nagging concern that such seemingly clear views might yet be wrong.
1 - Law and Office
- Steve Sheppard, University of Arkansas
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- I Do Solemnly Swear
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- 05 June 2012
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- 27 April 2009, pp 8-48
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The administration of the government, like the office of a trustee, must be conducted for the benefit of those entrusted to one's care, not of those to whom it is entrusted.
Cicero, On Duties, Book I, Chapter XXVAt the outset, we must deal with two fundamental questions: what is the law, and what are officials? We must have a common understanding of the law and the people who work with it, if we are to consider what implications there are for us, and for them, in what they do. Thus, we must consider what we imagine when we think of laws and officials.
There is a tension between two visions of the law in America, and these views of law color our view of the official. On the one hand, we see the law as a Romantic ideal. Two lawyers stand like gladiators, each fighting for a cause before a judge who decrees a winner and a loser. A president or a senator stands like a Roman of old, pronouncing the law. In each picture, the individual appears as the source of the law, the person acting upon the law and the law acting through the person. Yet we also see a classical ideal, our laws framed and shaped by famous institutions in vast marble buildings, great armies of experts in which the efforts of each individual are only a portion of the whole.
The Perfectionisms of John Rawls
- Steve Sheppard
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- Journal:
- Canadian Journal of Law & Jurisprudence / Volume 11 / Issue 2 / July 1998
- Published online by Cambridge University Press:
- 09 June 2015, pp. 383-415
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- July 1998
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The acts of even the gods
Have ends beyond their intent.
John Rawls stands in a small pantheon of writers whose ideas have shaped the vocabularies of their age. Like a classical deity, his work has been invoked by disciple and dissenter alike as the essential totem of the modern liberal state. But his Promethean creation has grown independent from its original design, attaining significance not only for its initial merits but also for the competition it offers to the plan of its creator. So from the stage of Rawlsian liberal neutrality stalks the idea of legal perfectionism.
Legal perfectionism is the doctrine according to which officials may adopt and enforce laws according to the officials’ understanding of a good life, with the intended practical effect that people governed by such laws will lead better lives. In other words, legal perfectionism broadly enshrines the notion, sometime unpopular among Western theorists, that the government has, or should have, the power to reflect ideas of good and evil—the content of the good life or of good projects or of excellence—in framing the laws. While related both to older ideas of human perfection and perfectibility and to perennial concepts of virtue and morality, legal perfectionism has developed a distinct, modern meaning.