2002 Forum, Harold J. Berman, Faith and Law in a Multicultural World

Howard J. Berman

Professor of Law, Emory University School of Law and Harvard Law School

Presented on February 6, 2002, at Emory University

Faith and Law in a Multicultural World

It is an honor to be asked to give the 2002 annual lecture in honor of James Luther Adams, a great scholar, a great teacher, a great man. I remember him well, and miss his wisdom and his wit. He lives on, not only in his wide-ranging scholarly writings but also in the memories of his many creative actions and of his caring personality, memories still shared by dozens of his former colleagues and a multitude of his students.

It is also an honor to be asked to associate this lecture with the program on Issues of Faith and the Practice of Law sponsored by the Georgia Chief Justice’s Commission on Professionalism, the Atlanta Bar Association, and the Georgia Justice Project. I have had the privilege of attending some of the afternoon sessions of that program at which there were interesting and useful discussions of the lawyer’s calling to bring his religious faith into his work, to serve God in his practice, and not to neglect what Jesus, in rebuking the Pharisees, called “the weightier matters of the law, which are justice and mercy and good faith.”

My topic — faith and law in a multicultural world — addresses the question of the responsibility of lawyers to serve justice and mercy and good faith in their relationships not only to their clients and to the local community in which they work and to the nation of which they are citizens but also to the larger multicultural world society of which we and our local communities and our nation are a part — a world society that is gradually emerging in the twentieth and twenty-first century. We live in a world economy, supported by a growing body of transnational law of trade and finance and investment. Through new technology, we also have virtually instantaneous worldwide communications, also subject to an emerging body of transnational legal regulation. Transnational organizations and associations of all kinds are formed to advance a myriad of different causes. Many of them influence legal responses to world disorder and world injustices, to pollution and destruction of the world’s environment, to threats to universal human rights, to world diseases, worldwide terrorism, ethnic and religious conflict. People of the world have come together in calling for the development of worldwide legal protection against these global scourges through the development of official and unofficial legal institutions.

The emerging world society is, to be sure, sorely threatened by extremists of the various world cultures. But the “clash of civilizations,” in Samuel Huntington’s phrase, is taking place on the background of the coming of the peoples of the world into increasingly close relationships with each other. Even the antiglobalists form a global network. Even the terrorists are part of a transnational conspiracy.

It is in the spirit of James Luther Adams, and also of this afternoon’s discussions, that I make a confession of my own faith in this regard. I do not doubt the providential character of this historical development, which is a culmination of more than five thousand years of human history. Gradually, century by century, the peoples of the world have been brought into contact with each other. Especially in the second millennium of the Christian era, Western Christendom, through its missionaries, its merchants, and its military, made a world around itself. Now as we enter the third millennium of that history, the West is no longer the center. All humanity is joined together in a common destiny. Despite two World Wars and their aftermath of terrible ethnic, territorial, ideological conflicts, St. Paul’s extraordinary insight that “every race of man” is “made of one blood to inhabit the whole earth’s surface” (Acts 17:24, 26) –has not only been proved scientifically but has also become a historical reality. We are all faced with the alternative of worldwide mutual support or worldwide mutual destruction.

I believe that this is providential. Isn’t the interaction of all the peoples of the world with each other what was intended from the beginning? Isn’t that what world history has been all about — that the unity of the human race should become a possibility, a challenge? I think that the God of history has put it to us squarely: Either you now come together or you will destroy each other!

What has this to do with lawyers? Everything! As Benno Schmidt, former Dean of Columbia Law School and former President of Yale University, wrote several years ago, “The world has replaced the nation as the context within which the professions operate.” Most major American law firms have offices in one or more other parts of the world, and most of the smaller firms as well have clients involved in transnational transactions of one kind or another. A world economy — world trade, world finance, world investment — cannot operate without legal rules, legal procedures, legal concepts, legal values, and these cannot be formulated and maintained and developed without the participation of the world’s lawyers.

Even apart from multinational legal practice, it is the lawyer’s responsibility, and the lawyer’s opportunity, to help to construct a world order that is founded on justice. Order is one part of it: rules, precedents, consistency, predictability, are one side of law; like cases should be decided alike; people should be able to calculate the legal consequences of their acts. The other part of it is justice: equality, fairness, due process, both substantive and procedural — not just the rules but the larger purposes of the rules. I referred earlier to Jesus’s famous words: “Woe unto you lawyers, for you tithe mint and dill and cumin” — that is, you keep order and enforce the technicalities — “but you neglect the weightier matters of the law, which are justice, and mercy, and good faith.” But then he added: “These” — that is justice and mercy and faith — “you should do without neglecting the others!” That is, without neglecting the rules, without neglecting the technicalities. They are, to be sure, less “weighty,” but they are no less necessary. Jesus was not against the formality of law.

If there were more time I would talk at greater length about the ways in which lawyers can help — and should help — to build a world order founded on justice. I have taken upon myself, however, an even larger topic: the relation of law to faith, and the dependence of the developing body of world law on the development of a common faith among the various cultures of the world, cultures that do not share the same religious doctrines, cultures that do not have the same concepts of law and the same attitudes toward law, but which nevertheless are increasingly challenged to share a commitment to build a world legal order, founded on a universal sense of justice.

It is a huge topic: the world’s belief-systems and their relationship to the world’s legal systems. There are books on the world’s belief-systems and books on the world’s legal systems, but I have found none that address systematically the relations between the two. I hope that nevertheless I can make a few points that may be helpful to those who wish to take seriously the question of how common elements of faith among the world’s cultures can support the further development of world law.

Let me speak first about common features of the world’s religions, and then about common features of the world’s legal systems, and finally about the kind of faith that is needed to forge a relationship between the two.

The great religions of the world — including Judaism, Christianity, and Islam, as well as Buddhism, Hinduism, Taoism, Bahai, and others, and including also certain forms of humanism that share with the religions a strong belief in transcendent spiritual values – – all these great belief-systems, while they differ from each other in their theology and their metaphysics, share certain moral principles, they have a common ethic. All the great religions affirm the Golden Rule — that you should do unto others what you would want others to do unto you, that one should love one’s neighbor, that one should aid those who are in distress. All proclaim that the dignity of all persons should be respected, that every human being should be treated humanely, that persons should not lie but should speak truthfully, that one should not murder, that one should not steal, that one should not bear false witness against another. Indeed, anthropologists have shown that in all the cultures of the world, including the most primitive, there are moral rules corresponding to the last six of the Biblical Ten Commandments. Since 1933 thousands of religious leaders from around the world have met periodically in a Parliament of the World’s Religions, which has adopted a Declaration of a Global Ethic affirming a fundamental consensus among all the world’s religions on binding values and irrevocable moral standards.

There are, of course, within each of the religious denominations extremists who would confine the Golden Rule and other related moral obligations to those who share their own narrower version of their denominational doctrine. There are among adherents of all religions advocates of intolerance against those who disagree with their interpretation of the true doctrine. Yet these are perversions of authentic religion, which reduce its essential postulate of universality to parochial dogmas and parochial interests.

All the great religions are expressions of a fundamental need of sociability that is inherent in human nature, and it is that inclination that is a fundamental source of all law. Indeed, the great seventeenth-century founder of modern international law, Hugo Grotius, rested the validity of a universal international law, applicable not only among the Christian nations of the West but among all peoples of the world, on the principle of sociability — that “human nature itself,” in his words, ’causes us to desire a mutual society.”

And yet — look at us! The peoples of the world share a global ethic, yet they are still consumed by ethnic and territorial passions, by ties of blood and soil. We have authentic universal religious and humanist creeds that support a global ethic, yet we are only beginning to develop a body of world law which embodies that ethic.

Which takes me to faith.

For present purposes allow me to distinguish faith from both religion and morality, though it is closely related to both. I would emphasize in “religion” the importance of doctrines, of teachings, concerning what is sacred, what is holy, what is transcendent, what gives ultimate meaning to life. This includes, of course, moral teachings, ethics, but looks beyond them to their source and inspiration. “Faith” adds both to doctrine and to morals a commitment, not only a belief that there is a God, or that there are spiritual values transcending material self-interest, but also a belief in those spiritual values, a commitment to them, an acceptance of responsibility to serve them. Faith involves feelings — feelings of dependence, gratitude, humility, obligation. It comes from the heart. It is our willingness to live out our beliefs, to sacrifice for them, even to die for them if necessary. Such faith may not be religious in the doctrinal sense; it may be faith in the nation, or faith in democracy. It has a social dimension. I follow H. Richard Niebuhr in emphasizing that faith brings human beings together in communities of trust and loyalty. “Faith,” Niebuhr writes, “is embodied in social institutions as well as in private intuitions, in corporate endeavors as well as in individual activities, in secular pursuits as well as sacred expressions.” (H. Richard Niebuhr, Radical Monotheism and Western Culture, 1960, pp. 38-48.)

A common spiritual faith is needed to support the emerging law of the emerging world society, a spiritual faith grounded in history but adapted to a new millennium of global integration. Such a common spiritual faith must draw, I believe, on the resources not only of Christianity, Judaism, and Islam but also of various other religions as well as on various kinds of humanism that share with religions a belief in the priority of spiritual values over material values, the priority of sociability over material self-interest. I believe that we are already entering this new age, which may come to be called the age of the holy spirit.

I speak of a common spiritual faith rather than of a common ethic or a common ligion, and I speak of the kind of spiritual faith that is needed to support a legal order that crosses all ethnic, territorial, cultural, and religious boundaries.

Let me give a simple example of a body of world law that now exists, and has existed for centuries, that is supported by the faith of those who create it and are governed by it, namely, the so-called law merchant. I refer to the body of law that governs transnational commercial transactions — export-import contracts, contracts of carriage of goods by sea and rail and truck and air, marine insurance, payment by letters of credit issued by banks. By the way, the body of law governing these matters, which is more or less uniform throughout the world, is often applicable not only to international transactions but also to domestic transactions. If, for example, goods are shipped from a to New York by vessel via the Panama Canal, the ocean bill of lading will normally have the same legal character as an ocean bill of lading used in an export import transaction between enterprises in any two different countries of the world: it will constitute a receipt for the goods, it will contain the terms of the contract of carriage, and it will be a document of title, whose transfer to another constitutes transfer of ownership of the goods. Likewise a domestic letter-of-credit transaction will normally be subject to the same rules that govern letter-of-credit transactions between citizens of different countries. The exporters and importers of the world, the bankers of the world, the marine insurance underwriters of the world, the long-distance carriers of the world, and others associated with them, including their lawyers, form a world community that over the centuries has made, and continues to make, through their contractual relations with each other, the law by which their various types of transactions are governed. Formally, the law applicable to such commercial transactions may be the law of a particular nation state, but the court of the nation-state will enforce the contract terms and the body of transnational customary mercantile law that underlies them.

Two centuries ago this body of law was considered to be part of what was called the law of nations, jus gentium, the law of peoples, which until the nineteenth century was considered to include those branches of law that are common to all the peoples of the world.

What is the belief-system, what is the ethic, what is the faith, that underlies and supports a universal body of mercantile law — as it is coming to underlie a growing body of world financial law, world law of investment, and other branches of the law of the world economy? The answer usually given is that it is in the “material self-interest” of merchants and banks to have a body of law governing the sale of goods. And that, of course, is true. But self-interest hardly explains it. There is also a shared ethic, a shared belief that contracts should be binding, that promises should be kept. Most important, there is also a shared faith in the community of merchants and bankers who make the trade terms and credit terms and who come together periodically in the International Chamber of Commerce in Paris to revise them, a shared trust that the people who constitute the market will not degenerate into a body of scoundrels and thieves, a shared belief in the law by which the mercantile and banking and shipping and underwriting communities are governed. I might note that the International Chamber of Commerce is a global federation of national committees of business enterprises from about 65 different countries plus individual members from approximately 110 countries. Over 50,000 enterprises are represented in it.

In addition to transnational communities of enterprises engaged in economic activities, there are many other types of transnational communities that are influencing the growth of other branches of world law. A transnational civil society is in the making, which has historical roots in transnational religions; indeed, it was partly in response to the creation of the modern canon law of the Roman Catholic Church in Western Europe in the twelfth and thirteenth centuries that the transnational law merchant first developed. And it is in the transnational associations that have come to flourish in the twentieth and now the twenty-first century that new bodies of world law are in the making: transnational associations of natural scientists and of social scientists, transnational associations of doctors and of lawyers, transnational educational associations, transnational labor associations, transnational social organizations, including so-called International Nongovernmental Organizations (“INGOs”), of which more than 6000 are registered with the United Nations. Such multinational organizations as Amnesty International, which intervenes on behalf of victims of violation of human rights, and the World Wildlife Fund, with some six million members, which conducts programs to protect the world environment, have a direct effect on the enforcement — and in some instances the creation — of world law. One could go on a very long time with this list, and one could recount the changes in world humanitarian law, world environmental law, world health law, and other branches of world law that such associations have fostered.

It is especially fitting in a lecture dedicated to James Luther Adams to stress the importance of voluntary associations as a necessary means of establishing a just society. This was one of the great themes which he pursued both in his scholarship and in his actions. In that connection, he emphasized especially the role of covenant communities and of the church in the history of the West. Although he did not relate his theory of associations to the emergence of a world economy and a world society, he did relate it to the prophetic character of Christian faith. He knew that voluntary associations may serve special interests but he also stressed that they are an indispensable instrument of Christian ethics, which respond, he wrote, to God’s power to inspire people to come together not only in families and neighborhoods but also in larger communities. Indeed, he advocated the formation of associations through which Christians and non-Christians could enter into constructive dialogue and even to achieve consensus. Most important, he stressed the role of voluntary associations in shaping history. (See James D. Hunt, “Voluntary Associations as a Key to History,” in D. B. Robertson, editor, Voluntary Associations: A Study of Groups in Free Societies, Essays in Honor of James Luther Adams, 1966, Chapter XVIII.)

I have stressed the role of transnational voluntary associations of faithful people in creating customary world law and have referred only obliquely to the role of national governments in coming together to create, through treaties and conventions, a new body of public international law. The expansion of the scope of public international law to embrace such matters as protection of universal human rights, protection of the world’s climate and forests and wildlife, the securing of the open seas as “the common heritage of mankind,” and also the joint actions of governments in the struggle against world disease and now in the fight against world terrorism — such official intergovernmental and governmental legal responses to a mounting faith in the interdependence of the world’s peoples — is the closely related topic of another lecture.

I conclude by reiterating that in the historical context of an emerging and still fragile global order, a transnational, cross-cultural, inter-religious commitment to spiritual values is needed, if ethnic and territorial and other diverse cultural forces of disintegration are not to frustrate the formation of world law, a world society and eventually a world community. I have called the new age into which mankind is entering the age of the holy spirit — with a small “h” and a small “s”; this is an ecumenical image which not only corresponds to Christian tradition but is also congenial to adherents of other religions as well as to those humanists who disclaim religious affiliation but nevertheless hold some values to be sacred. I believe that only a shared faith in the common destiny of mankind gradually to form a world community will provide the vision and the support necessary to the continued creation of a world order governed by law.

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