Religious Values, Legal Ethics, and Poverty Law: A Response to Thomas Shaffer

INTRODUCTION As a lawyer, law teacher, and legal scholar, Thomas Shaffer is inspired and guided by religious values. Being a lawyer for Thomas Shaffer is a vocation, a calling to pursue social justice. (1) He is, to use his term, a "role model" of a lawyer who believes that his religious values require that he pursue justice. Shaffer is clearly right in asserting that there is much in the prophetic literature, and, indeed, in the entire Hebrew Bible and the New Testament, that could serve as a moral impetus for social justice lawyering. (2) One can find considerable support for Shaffer's religious thesis in the texts that he cites, and in the words of the prophets he looks to as role models. Nevertheless, it is my intention to present a skeptical response to Professor Shaffer's thoughtful essay. I. THE RELIGIOUS THESIS In the religious tradition with which I am most familiar--Judaism--the obligation to pursue justice is a prominent and recurring theological and ethical ideal. (3) Jewish religious texts call upon the People to engage in socially responsible behavior in the form of acts of loving kindness, gemilut hasadim (4), and efforts to repair the world, tikkun olam. (5) Jewish theology contemplates the active participation of human beings in helping to bring about the messianic vision of a world of justice and peace. (6) The religious thesis is that the absorption" of Jewish religious thought and the inculcation of Jewish ethical values lead many, even antireligious, Jews to engage in social justice activism. (7) There is much in Jewish religious thought, ideology and values to support the religious thesis. A central theme of the Bible, the Prophets, and the Writings is "justice", not in the Greek sense of harmony, but rather as righteousness, and the doing of good deeds. (8) The Hebrew word for justice, tzedek and the Hebrew word for charity, tzedakah, are from the same Hebrew root. (9) In Jewish religious thought, doing justice is an obligation commanded by God. (10) The religious duty to pursue justice is the keynote of the humane legislation of the Torah, and of the insistence on social righteousness by Israel's Prophets, Psalmists, and Sages. (11) In the Torah, God repeatedly admonishes the Israelites to be kind and generous to the stranger, the widow, the orphan, and the poor. (12) The divine prohibition against oppressing strangers occurs in no fewer than thirty-six places in the Torah, (13) usually accompanied by similar exhortations regarding widows and orphans. (14) The ethical injunction to do justice to the poor and disadvantaged appears repeatedly throughout the Hebrew Bible, (15) inviting an understanding of the constitutive Jewish religious text as a manifesto for activism in furtherance of social justice. In the Hebrew Bible, God is never satisfied with mere ritual observance; He demands that the people act justly, (16) The idea of commandments, mitzvot, that impose obligations on individuals to pursue justice permeates Jewish religious thought, engendering what the late Robert Cover called "a Jewish jurisprudence of the social order." (17) In Cover's words: "The basic word of Judaism is obligation or mitzvah.... Indeed, to be one who acts out of obligation is the closest thing there is to a Jewish definition of completion as a person within the community." (18) What evidence is there that this Jewish tradition of religious obligation to do justice, to perform acts of loving kindness, to make the world a better place, has permeated the souls of Jewish social activist lawyers and motivated their behavior? Gerald Sorin has offered in support of the religious thesis his collective biography of 170 American Jewish immigrant radicals. (19) Sorin concludes that: The great bulk of the Jewish men and women who came to socialism had been saturated in Jewish tradition and Jewish culture. To them socialism, though a political movement, was more than the mere program of a political party. …