Saturday, May 16, 2015

Sue 4 Insult?

This is the first post on this new blog dedicated to the teaching of Jesus Christ against civil litigation.

Christian pacifists always base their teaching and arguments on the Sermon on the Mount. Although this is not at all inappropriate, what is inappropriate is that the Christian tradition has entirely lost the key message of the Sermon on the Mount: Jesus mocking and abolishing civil litigation for money damages. Yes, that is what it is mostly about!

Christian pacifists also frequently appeal to the early Christian writers to support their understanding of Christian teaching and its application to matters of war. Again this is not at all inappropriate, as without exception everything they said on the topic was supportive of pacifism as far as I have been able to review it. Again, however, the topic of civil litigation is simply and wrongly ignored. For example, when we look at how they argued against taking up the sword or supporting its use in warfare, we see that in some cases they made the argument against the sword by pointing out that Christian teaching in the Sermon on the Mount even prohibited civil litigation:
we have learned, not only not to return blow for blow, nor to go to law with those who plunder and rob us, but to those who smite us on one side of the face to offer the other side also, and to those who take away our coat to give likewise our cloak (Athenagoras, A plea for the Christians, Ch 1)
Shall it be held lawful to make an occupation of the sword, when the Lord proclaims that he who uses the sword shall perish by the sword? And shall the son of peace take part in the battle when it does not become him even to sue at law? And shall he apply the chain, and the prison, and the torture, and the punishment, who is not the avenger even of his own wrongs? (Tertullian, The Chaplet, Ch XI)
Let me acknowledge that you, dear reader, are at this point likely scratching your head and wondering what kind of strange tangent this might be that this author and perhaps a handful of early Christian writers have gone off. 

For a start, what could possible be wrong with civil litigation? Perhaps a particular type of civil litigation might indeed be objectionable, or maybe a particular procedure or remedy might be problematic, but how, pray tell, will commercial activities possibly be coordinated without the background availability of resort to civil litigation and debt enforcement to make people honour their engagements?

Or, more to the point, surely the claim that Jesus taught against civil litigation is a highly speculative and almost certainly erroneous interpretation of the Christian gospel. We know Jesus was primarily teaching about spiritual matters, wasn't he? He gave no teaching about civil legal procedure -- did he? (Of course he did, in Mat 18:15-20, which will be dealt with in other posts.)

I submit to you that these are exactly the questions and issues that need to be examined to understand and obey the Christian gospel. And I hope to engage these issues well on this blog.

Let me finish this first post by explaining the title Sue 4 Insult. This refers to Mat 5:21-26

‘You have heard that it was said to the people long ago, “You shall not murder, and anyone who murders will be subject to judgment.” But I tell you that anyone who is angry with a brother or sister will be subject to judgment. Again, anyone who says to a brother or sister, “Raca,” is answerable to the court. And anyone who says, “You fool!” will be in danger of the fire of hell.

‘Therefore, if you are offering your gift at the altar and there remember that your brother or sister has something against you, leave your gift there in front of the altar. First go and be reconciled to them; then come and offer your gift.

‘Settle matters quickly with your adversary who is taking you to court. Do it while you are still together on the way, or your adversary may hand you over to the judge, and the judge may hand you over to the officer, and you may be thrown into prison. Truly I tell you, you will not get out until you have paid the last penny.
The title of this blog is taken from the second part of this passage, where Jesus warns about the consequences of anger and angry and insulting words. Everyone agrees that from 'your brother or sister has something against you' refers to civil litigation and debt enforcement procedures and has practically nothing to do with divine or spiritual punishment. Generally, however, it is taken as purely prudential advice and as showing the importance of seeking reconciliation (in the same way the references to anger and name-calling are taken as purely prudential and psychological/spiritual advice). 

However, a closer look shows that Jesus is referring to civil litigation and debt enforcement procedures in a pejorative manner. It is not simply an adverse turn of events for the respondent and judgement debtor, it is a scourge and an abomination for society. This can be seen from Luke 12:54-59
He said to the crowd: ‘When you see a cloud rising in the west, immediately you say, “It’s going to rain,” and it does. And when the south wind blows, you say, “It’s going to be hot,” and it is. Hypocrites! You know how to interpret the appearance of the earth and the sky. How is it that you don’t know how to interpret this present time?

‘Why don’t you judge for yourselves what is right? As you are going with your adversary to the magistrate, try hard to be reconciled on the way, or your adversary may drag you off to the judge, and the judge turn you over to the officer, and the officer throw you into prison. I tell you, you will not get out until you have paid the last penny.’
How can civil litigation and judgement debt enforcement sensibly be a sign of the times? The only way to make sense of this is to consider whether Jesus was seriously concerned about the resort to civil litigation and about the judgement debt enforcement procedures he mentions. Perhaps he really does give us an administration of the law without dragging people to court finding them liable and enforcing judgement debts?

Returning to Mat 5:21-26, if Jesus is actually referring to coercing people to appear before the court and finding them liable and imposing debt enforcement procedures on them in a pejorative manner, how can we make sense of his rhetoric on murder and anger?

There are two cases being contrasted: the capital case of murder, and the money-damages case of insult. The focus of Jesus is on the legal consequences of these two wrongs for he lists them explicitly:
  1. will be subject to judgement
  2. will be subject to judgement (again)
  3. answerable to the court (the Sanhedrin, the supreme court of Israel at the time)
  4. in danger of the fire of hell (gehenna, the burning rubbish dump outside the city of Jerusalem)
  5. taking you to court
  6. hand you over to the judge
  7. hand you over to the officer
  8. the officer throw you into (judgement-debtor's) prison, you will not get out until you have paid the last penny

To follow the rhetoric requires further contrasts, for both of the case types, between:
  • the law of Moses
  • the Jewish law as practiced by the Jewish courts of the time of Jesus
  • the Roman imperial laws and practices, and finally
  • the new administration of the law given by Jesus.

The judgement the law of Moses provided for murder is for the avenger of blood to take the life of the murderer, following due process of law (Numbers 35). 

The Jewish law as practiced by the Jewish courts of the time of Jesus, however, were extremely reluctant to impose the death penalty on murderers or anyone else accused of capital crimes. The way they avoided it was to impose impossible burdens of evidence in capital cases.

The Romans, however, practiced and imposed the death penalty, but primarily applied it to those who were not Roman citizens and who took part in or lead uprisings or revolts against Roman rule. At the time Jesus taught, the Romans had taken the power of the death penalty from the Jewish Sanhedrin who, as mentioned above, had come to the position against its use and who were therefore losing little from the move.

Jesus criticised the Jewish leaders for plenty of different laws and practices, but never said a word against them for making the law of no effect concerning imposing the death penalty on those guilty of capital offences. What the had done de facto, Jesus did de jure by abolishing the 'eye for eye' law (Mat 5:38-39) and suggesting that imposing the death penalty, even on the guilty, was itself sin (John 8:7).

The law of insult again requires us to consider the four different stances.

The law of Moses provides no civil remedy for insult. Financial compensation for injury, loss of time from work, pain, and medical costs were all available under Ex 21, but insult is not mentioned there nor anywhere else in the law of Moses.

The Jewish courts, however, were of the position that damage to reputation through insult was a real loss caused by a real wrongdoing, and that the law must provide a real remedy. But the legal basis for the position under the law of Moses would probably still have been considered dubious and debatable at the time Jesus taught. But this is exactly what Jesus warned about: being dragged to court and even to the Sanhedrin for name-calling.

Under Roman law, under Tiberius, insulting the emperor and being guilty of high treason was a strict liability offense that could be used for financial or political motivation or advantage. The political and legal reality of living as a non-citizen in an imperial Roman province was that insulting the wrong person, or threatening the wrong political or financial interest was dangerous. And the penalty non-citizens was crucifixion, which in Jerusalem would be done outside the city, with the body in danger of being dishonourably disposed the city rubbish dump also outside the city -- gehenna. 

Jesus did not practice his own prudential advice concerning anger and insult, suggesting the rhetorical point of the passage was not prudential advice at all. Although he did take care in what he said to avoid traps and often chose to criticize using safer methods such as parables, he also insulted Herod, the Pharisees, the teachers of the law and the scribes in provocative ways, including arriving in Jerusalem as a king and overturning the money changes tables etc. in the Temple. However, the issue is not his practice but his teaching and stance on the law of insult. This can be seen from the rhetorical strategy used in the passage: Jesus is using the case of a man whose only injury is to his pride, dragging his adversary to court, obtaining a judgement debt so large as to financially ruin his adversary, and putting his adversary into debtor's prison until he has paid the last penny of the judgement debt. Is this the course of the man of honour? In mocking the law of insult, his own position on it is clear: he is opposed!

So, there you have it: Jesus mocks suits for insult as his way of teaching against civil litigation for money damages.

But did Jesus actually prohibit civil litigation in the Sermon on the Mount? Do we have to read between the lines or is it actually laid out for us?

Jesus explicitly abolished the administration of the law providing for money damages, and mandated alternative responses to legal wrongs:
 ‘You have heard that it was said, “Eye for eye, and tooth for tooth.” But I tell you, do not resist an evil person. If anyone slaps you on the right cheek, turn to them the other cheek also. And if anyone wants to sue you and take your shirt, hand over your coat as well. If anyone forces you to go one mile, go with them two miles. Give to the one who asks you, and do not turn away from the one who wants to borrow from you. 
In fact looking carefully at the above you will note that Jesus uses the case of being sued, as an example of a wrong that requires a response other than civil litigation.

And, in case it is still not clear Jesus gives a summary of his teaching:
‘Do not judge, or you too will be judged. (Mat 7:1)
The word translated judge means not only 'judge' but also 'sue.' Jesus not only prohibits the judges from hearing lawsuits, he prohibits the filing of lawsuits in response to wrongdoing. And he does so in unambiguous and explicit terms.

I will save the teaching against swearing oaths, and about honour and forgiveness and about the alternative procedures and remedies provided by Jesus and the Christian gospel for later posts, but hopefully this post will bring such passages to mind in a new light.

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