On the book of job, justice, and the precariousness of the criminal law

Law, Culture and the Humanities

Volumn 4, Issue 1, 2008, Pages 98-118

  Berger, Benjamin L ^a  

^a UNIVERSITY OF VICTORIA   (Canada)

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EID: 40849150867     PISSN: 17438721     EISSN: 17439752     Source Type: Journal    
DOI: 10.1177/1743872107086147     Document Type: Article

References (58)

1. Owen Fiss, "The Awkwardness of the Criminal Law," in The Law as it Could Be (New York: New York University Press, 2003).
2. Fiss, "Awkwardness," p. 147. The place of the ordinary and the extraordinary in the criminal law is a deep question. Fiss implicitly assigns the "normal" criminal matter to the realm of the banal, whereas human rights abuses fall to the "demonic." This is not a necessary or stable characterization. Part of the function of the criminal law is precisely to define the socially extraordinary.
3. See Paul W. Kahn, The Reign of Law: Marbury v. Madison and the Construction of America (New Haven: Yale University Press, 1997), 167 ("Law never explicitly concedes defeat; it never admits powerlessness.").
4. Compare Robert A. Burt, "Disorder in the Court: The Death Penalty and the Constitution," Michigan Law Review 85 (1987): 1741. (Suggesting a different, oppositional relationship between order and justice as disclosed in the U.S. Supreme Court's death penalty jurisprudence. Burt argues that this body of jurisprudence betrays a conviction on the part of the judges that, in the case of capital punishment, the demands of Order are incompatible with the demands of Justice and that one must be selected over the other. Burt disagrees, asserting that the very nature of the judicial role demands that judges proceed on the basis of the proposition that the demands of Justice and Order can be reconciled, or at least mutually accommodated, through social deliberation.)
5. Job 1:8. All quotations from the Book of Job are based on the Jewish Publication Society translation of the Tanakh, checked against the author's reading of the Hebrew text.
6. Job 8:3-6; 36:6-17.
7. Job 22:5-7.
8. There is an interpretive tradition that does locate a flaw in Job. Maimonides took the view that the text's focus on Job's character traits and the comparative absence of mention of intellectual virtues meant that Job was intellectually deficient. From this starting point, Maimonides reads the Book of Job as a psychological story about learning to bear suffering with equanimity. See Robert Eisen, The Book of Job in Medieval Jewish Philosophy (Oxford: Oxford University Press, 2004), 48-71.
9. The translation "Adversary" is the most grammatically consistent translation from the Hebrew. In English editions of the Christian Bible, such as the King James Bible or the New Revised Standard Version, the Hebrew word appearing in the text, transliterated "HSTN", is often translated as a proper name, "Satan". However, in the Hebrew, the letters STN are preceded by "H", the definite article. If STN is a proper name, the correct English translation would be "the Satan", which makes no more sense than speaking of "the Eliott" or "the Graham". The Hebrew meaning of STN is "adversary" and, thus, the word HSTN reflects a role, "the Adversary", not an individual, "Satan".
10. Job 2:3.
11. See Edwin M. Good, In Turns of Tempest: A Reading of Job (Stanford: Stanford University Press, 1990), 162. (Arguing that the word mispat, usually translated as "justice," is best translated as "order," so as to emphasize the close relationship between justice and order in the Book of Job.)
12. Genesis 4:7.
13. Cain's punishment is, however, a strange one. He is marked by God, but also protected from human vengeance and goes on to found a great city and, through his children, establish the early elements of civilization.
14. Genesis 18:27.
15. Genesis 18:25.
16. Leviticus 26:3.
17. Leviticus 26:14-16.
18. The most powerful such expression lies in the mouth of Elihu son of Barachel the Buzite, who has undergone a substantial transformation over the course of the friends' conversation with Job: "Therefore, men of understanding, listen to me;/Wickedness be far from God,/ Wrongdoing, from Shaddai!/For He pays a man according to his actions,/ And provides for him according to his conduct;/For God surely does not act wickedly;/Shaddai does not pervert justice." Jb. 34:10-12. See also the speech of Eliphaz the Temanite at Jb. 22:3-5 ("Does Shaddai gain if you are righteous?/Does He profit if your conduct is blameless?/Is it because of your piety that He arraigns you,/And enters into judgment with you?/You know that your wickedness is great,/And that your iniquities have no limit.").
19. See Job 8:3-6 (Bildad the Shuhite arguing "Will God pervert the right?/Will the Almighty pervert justice?/If your sons sinned against Him,/He dispatched them for their transgression./But if you seek God/And supplicate the Almighty,/If you are blameless and upright,/He will protect you,/And grant well-being to your righteous home."). Of course, we know precisely that Job has been blameless and upright.
20. Good takes this message about disorder to be the central proposition in the Book of Job. See Good, Turns of Tempest, p. 355 ("The world's order entails both regularity and irregularity, both law and lawlessness, both order and disorder.").
21. Job 23:10-13 ("But He knows the way I take;/Would He assay me, I should emerge pure as gold./I have followed in His tracks,/Kept His way without swerving,/I have not deviated from what His lips commanded;/I have treasured His words more than my daily bread./He is one; who can dissuade him?/Whatever He desires, He does.").
22. Job 3:3-26 ("Perish the day on which I was born,/And the night it was announced,/'A male has been conceived!'/May that day be darkness...").
23. Job 27:2-6 ("By God who has deprived me of justice!/By Shaddai who has embittered my life!/As long as there is life in me,/And God's breath is in my nostrils,/My lips will speak no wrong,/Nor my tongue utter deceit./Far be it from me to say that you are right;/ Until I die I will maintain my integrity./I persist in my righteousness and will not yield;/I shall be free of reproach as long as I live."). Note that, with the words "far be it from me" Job claims the mantle of justice that Abraham had accorded to God when, in the Sodom and Gomorrah story, he said to God, "far be it from you." The Prophet Habakkuk makes a similar accusation: "You whose eyes are too pure to look upon evil,/Who cannot countenance wrongdoing,/Why do You countenance treachery,/And stand by idle/While the one in the wrong devours/The one in the right?" Habakkuk 1:13.
24. Job 31:35 ("O that I had someone to give me a hearing;/O that Shaddai would reply to my writ,/Or my accuser draw up a true bill!").
25. Job 38-41.
26. Job 42:6.
27. In this way, I resist the conventional reading of Job's final speech as a retraction of his indictment. See Robert Gordis, The Book of Job: Commentary, New Translation and Special Studies (New York: Jewish Theological Seminary of America, 1978), 491 ("The Lord's Second Speech has taught Job to recognize both the mystery and the harmony of the world."). Job's response is far more complex and leaves a strong air of condemnation for God's conduct in the story. See Kevin Snapp, "A Curious Ring in the Ears: Ambiguity and Ambivalence in the Conclusion of the Book of Job," Conservative Judaism 53 (Fall 2000): 34 and 41 ("Job's final speech need not be read as pathetic submission, but may be read as an anguished cry invoking the covenant of Abraham."). Snapp surveys a number of textual arguments to this effect at 37ff. See also Good, Turns of Tempest, pp. 377-78 (arguing that Job's words here are not an acceptance of God's answer per se but, rather, an acceptance that "the world spins on its own kind of order, of which Job had very little sense." Good asserts that "to 'repent of dust and ashes' is to give up the religious structure that construes the world in terms of guilt and innocence. It is to repent of repentance.").
28. Genesis 18:27.
29. Genesis 18:25.
30. Job 42:7.
31. The antiphrastic use of the term "blessed" throughout the book impregnates the final use of that word - "And God blessed the rest of his days" - with a deep ambiguity. On the antiphrastic use of the Hebrew word BRK, see Michael Cheney, Dust, Wind and Agony: Character, Speech and Genre in Job (Stockholm: Almqvist & Wiksell International, 1994), 58-77.
32. See Snapp, "Ambiguity and Ambivalence," p. 35 ("The prologue places Job in a never-never-land, and the apparent absence of references to the Sinaitic covenant or late patriarchs makes it appear that Job was intended to be a universal figure on the order of the generic 'wise man' of the wisdom literature."); John E. Hartley, The Book of Job. New International Commentary on the Old Testament (Grand Rapids, MI: Eerdmans, 1988), 66-67. ("A patriarch is usually introduced in the biblical text with a full genealogy... thus it is noteworthy that Job is introduced without genealogy and without reference to his tribe or clan. There is also no specific reference to the time when Job lived. The author thereby masterfully composes a literary piece in which Job is representative of all who suffer.") See also Good, Turns of Tempest, pp. 189-90.
33. One sees this sense of a lack of existential reason - a feeling of cosmic senselessness - in the Book of Qohelet. For a discussion of existential absurdity in Qohelet, see Benjamin Lyle Berger, " Qohelet and the Exigencies of the Absurd," Biblical Interpretation 9 (2000).
34. See Marilyn D. McShane and Frank P. Williams III, "Radical Victimology: A Critique of the Concept of Victim in Traditional Victimology," 38 Crime & Delinquency (1992): 258 and 261. ("Removed from the reality of crime as an endemic feature of American life, most middle-class citizens can only understand crime, and their own victimization, as irrational, senseless phenomena.") For a discussion of the effects of victimization, and an empirical study of the criminal justice system's capacity to speak to these effects, see Heather Strang, Repair or Revenge: Victims and Restorative Justice (Oxford: Oxford University Press, 2002).
35. See, for example, Emile Durkheim, The Rules of the Sociological Method, trans. S.A. Solovay and J.H. Mueller (New York: The Free Press, 1964) (arguing that the criminal law's response to crime and deviance defines society's notion of acceptable behaviour. For Durkheim, the criminal was, thus, an "exemplar"). See also Joseph R. Gusfield, "On Legislating Morals: The Symbolic Process of Designating Deviance," California Law Review 56 (1968): 54 and 57. ("Government actions can be seen as ceremonial and ritual performances, designating the content of public morality. Law is not only a means of social control but also symbolizes the public affirmation of social ideals and norms.") Durkheim and Gusfield resonate with theorists who assert a communicative or expressive role for criminal law punishment. See Andrew von Hirsch, Censure and Sanctions (Oxford: Clarendon Press, 1993); David Garland, Punishment and Modern Society: A Study in Social Theory (Oxford: Clarendon Press, 1990); R.A. Duff, "Penal Communications: Recent Work in the Philosophy of Punishment," Crime and Justice 1 (1996).
36. There is textual support for the proposition that what God declares to be "truthful" is not Job's final recantation but, rather, his strident condemnation of God and the absence of justice in the world. One such point of textual support is that, in transitioning to the epilogue, the text begins with a reference to God's speech from the whirlwind even though the last speech was Job's apparent recantation. See Snapp, "Ambiguity and Ambivalence," p. 38 ("By ignoring Job's reply to God, the author hints that it is Job's words uttered in his dispute with the friends, not Job's supposed recantation, that meet with divine approval.").
37. William Blackstone, Commentaries on the Laws of England vol. IV, ch. xxvii (1769), 352.
38. See Woolmington v. D.P.P., [1935] A.C. 462, 481 (H.L.) ("Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt... If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal.").
39. For example, the prohibited character inference that, based on certain traits, an accused is "the type of person" more likely to have committed the crime in question.
40. One thinks of hearsay evidence and past criminal convictions as examples of evidence frequently excluded in criminal trials, despite the fact that we often use such information to make other very important decisions.
41. This spectre is clear when one looks to the extent to which wrongful convictions are now the focus of attention in media and in the arts. For popular culture examples, see the recent movie The Life of David Gale or The Hurricane and the recent play The Exonerated.
42. See Michael Oakeshott, Rationalism in Politics and Other Essays (Indianapolis: Liberty Press, 1991), 5 ("By one road or another, by conviction, by its supposed inevitability, by its alleged success, or even quite unreflectively, almost all politics today have become Rationalist or near-Rationalist."). For Oakeshott, one of the characteristics of this modern rationalist politics is a commitment to, what he calls, "the evanescence of imperfection". (Rationalism, p. 10). This "faith in the sovereignty of technique" is put profoundly in jeopardy in the criminal law (Rationalism, p. 28).
43. This reality has become more apparent with high-profile instances of wrongful convictions and the commissions of inquiry that have investigated them. In Canada, these include the inquiries into the wrongful convictions of Thomas Sophonow and Guy-Paul Morin. High-profile institutions have also emerged to address suspected cases of wrongful conviction. In the U.S., the Innocence Project, run out of New York, is one of the most visible examples; the leading organization in Canada is The Association in Defense of the Wrongfully Convicted, based in Toronto.
44. See Paul W. Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship (Chicago: Chicago University Press, 1999), 42. ("A secular conception of the state does not invent a new politics stripped of any taint of the religious tradition. Rather, it appropriates concepts that are already present and gives them a secular cast."). See also Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Cambridge, MA: MIT Press, 1985), 36 ("All significant concepts of the modern theory of the state are secularized theological concepts..."). Schmitt and some of his ideas are, of course, themselves deeply associated with tremendous senseless suffering.
45. See Charles Taylor, The Ethics of Authenticity (Cambridge: Harvard University Press, 1991), 5 ("sweeping away the old orders has immensely widened the scope of instrumental reason. Once society no longer has a sacred structure, once social arrangements and modes of action are no longer grounded in the order of things or the will of God, they are in a sense up for grabs. They can be redesigned with their consequences for happiness and well-being of individuals as our goal. The yardstick that henceforth applies is that of instrumental reason.").
46. See Taylor, Ethics of Authenticity, p. 3 ("Modern freedom was won by our breaking loose from older moral horizons. People used to see themselves as part of a larger order... Moral freedom came about through the discrediting of such orders... But at the same time as they restricted us, these orders gave meaning to the world and to the activities of social life... [T]he rituals and norms of society had more than merely instrumental significance. The discrediting of these orders has been called the 'disenchantment' of the world."). Taylor does not call for a retreat from this achievement, but does note that this disenchantment of the world "flattened and narrowed" our lives and our worlds. (Ethics of Authenticity, p. 4.) For a consideration of Taylor's notion of disenchantment, see Quentin Skinner, "Modernity and disenchantment: Some reflections on Charles Taylor's diagnosis," in Good and Velody, eds., The Politics of Postmodernity (Cambridge: Cambridge University Press, 1998), 49.
47. Thomas Green finds precisely this shift in thinking about the criminal in Roscoe Pound's work on criminal law. In Pound's criminal theory, which was responding in part to the increasing influence of the social sciences, "offenders were the product of social forces that were subject to change by an educated public." Thomas A. Green, "Freedom and Criminal Responsibility in the Age of Pound: An Essay on Criminal Justice," Michigan Law Review 93 (1995): 2017. See also George P. Fletcher, With Justice for Some: Protecting Victims' Rights in Criminal Trials (Reading, MA: Addison-Wesley, 1996), 17. Fletcher describes the shift from a sense of moral condemnation in the criminal law to one in which "[t]he wisdom of the times became understanding crime not as an expression of evil but as the acting out of mental illnesses."
48. For example, over the course of the last decade, whereas Canada has introduced amendments to the Criminal Code that explicitly list rehabilitation, reparation, and the encouragement of responsibility as objectives of sentencing (Criminal Code of Canada, R.S.C. 1986, c. C-46, s. 718), one can observe, since the 1970s and 1980s, a powerful trend in the United States towards a more retributive and punitive approach to criminal justice and sentencing. See, e.g., Beale, "Still Tough on Crime," 413; Kathy Elton and Michelle M. Roybal, "Restoration, a Component of Justice," Utah Law Rev. (2003): 47-8.
49. See Charles Taylor, The Sources of the Self: The Making of the Modern Identity (Cambridge: Cambridge University Press, 1989), 520 and 12-13 (arguing that the modern "strippeddown secular outlook" has made us particularly sensitive to suffering because it has made untenable this notion of punishment as a form of redemption. "The whole notion of a cosmic moral order, which gave this restoral its sense, has faded for us. The stress on relieving suffering has grown with the decline of this kind of belief.").
50. See James L. Nolan, Jr., The Therapeutic State: Justifying Government at Century's End (New York: New York University Press, 1998), 9. ("[A] defining feature of the therapeutic ethos... is the growing tendency to define a range of human behaviors as diseases or pathologies. With the therapeutic enterprise the therapist is, of course, concerned with healing or curing the patient. As the therapeutic perspective has spilled into the culture more broadly, so has the belief that a growing number of human actions represent diseases or illnesses that need to be healed. Behaviors that were formerly described at face value or interpreted in moralistic terms have increasingly been portrayed as pathologies."). For Nolan's take on the influence of therapeutic ideas in the criminal law more generally, see pp. 77-127.
51. See Nolan, Therapeutic State, p. 15 ("The tendency for individuals and groups to understand themselves as victims of their abusive pasts or of the oppressive social environment that surrounds them appears to be on the rise. The victimized mentality, of course, closely relates to the central place of the self and the growing cultural proclivity to interpret behavior in pathological terms. The self is not the perpetrator but the victim of a disorder. Implicit in the very definition of a disease is the belief that it is not the individual's fault but that someone or something else is to blame.").
52. See generally James Midgley et al., eds., Crime and Punishment in South Africa (Johannesburg: McGraw-Hill, 1975).
53. See David Cole, No Equal Justice: Race and Class in the American Criminal Justice System (New York: The New Press, 1999). For an account of the treatment of black people in Britain, see Paul Gordon, "Black People and the Criminal Law: Rhetoric and Reality," International Journal of the Sociology of Law 16 (1988): 295.
54. See Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (Ottawa: Canada Communications Group, 1996); Law Reform Commission of Canada, Report 34: Aboriginal Peoples and Criminal Justice (Ottawa: Law Reform Commission of Canada, 1991).
55. Robert M. Cover, "Violence and the Word," The Yale Law Journal 95 (1986): 1601.
56. Cover, "Violence and the Word," p. 1601.
57. Cover, "Violence and the Word," pp. 1606-07 ("it is precisely this embedding of an understanding of political text in institutional modes of action that distinguishes legal interpretation from the interpretation of literature, from political philosophy, and from constitutional criticism. Legal interpretation is either played out on the field of pain and death or it is something less (or more) than law.").
58. Cover, "Violence and the Word," p. 1603.