May 1998

Why does legal history make a difference to our lives and the choices we make?

I want to share with you my thoughts about why legal history is important to practical-minded lawyers, men, and women interested in the way we use law. We do not have time tonight to start with the Magna Carta and work forward to the 20th century. Therefore, I will confine myself to two examples. One example is from the grand drama aspect of the law, the more sexy kind of issue that captures public attention. The other example is much more obscure and mundane-but I believe much more important. Let me be open about my premise from the start. Law is not the end. It is a means. Lawyers do not have their hands on the levers that make the world revolve.

My first example is the federal grand jury about which we hear so much as Independent Prosecutor Ken Starr parades witness after witness to popping flashbulbs and humming video cameras.

The grand jury is an ancient English device (independent prosecutor is not) from at least the 12th century (1166 Assize of Clarendon for Henry II) created by the monarch to aid in his investigation and prosecution. Its purpose was to help wrest power (administration of justice) from the Church and the feudal barons.

It was an accusatory body at a time when there was not presumption of innocence but trial by ordeal (water-hot or cold-hot iron-morsel). The petit jury (gfand up to 23, petit up to 12) became a trial jury-to determine guilt or innocence.

True, in 1681, the grand jury refused to indict the Earl of Shaftesbury and Stephen College for treason for their Protestant opposition to Catholic Charles II. However, Charles found a different grand jury in a different town who indicted them and they were returned from exile and executed.

In the English Colonies, grand juries inspected the public roads, and reported on public officials and public expenditure. In the most celebrated case of John Zenger, the grand jury refused to indict him for criminal libel for criticizing the colonial New York governor.

Boston grand juries refused to indict those who rioted against the Stamp Act and did indict the British soldiers quartered in the town.

Put another way-the grand juries reflected the popular sentiments of the time. Sometimes doing the demands of those in power; sometimes opposing the hand of those in power.

One of the very peculiar things about American law: We fought an armed revolution to overthrow the British, but then went on to adopt its laws and legal system.

Embedded in the Fifth Amendment to the Constitution is: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury.”

The Sedition Act of 1789 made it a crime to publish scandalous or malicious writings about the government, president, Congress, etc. The federalist judges (Hamilton, Adams) used the grand jury to indict the Republican spokesmen and newspaper publishers. When the Republicans gained office, Jefferson tried to get the grand jury to indict his political enemy, Aaron Burr. Southern grand juries regularly enforced the Fugitive Slave Law, and after the Civil War, during reconstruction, subdued the radical Republicans, and refused to indict the members of the KKK.

The point is that legal institutions are staffed by human beings, and both are responsive to the shifting perceptions and values of a point in time. We ought not to be guided by some romantic nostalgia of earlier times that probably never existed the way we want to remember them.

Let me turn to my other example that is much more obscure and mundane. Wisconsin, Minnesota, Michigan and much of northern Illinois, Indiana, and Iowa are beautiful rolling lands dotted with lakes. Once they were heavily forested, too. They were thick with native white pines and hardwood oaks, maples, and other trees. They are not so any more. The trees and forests are second growth. Many are scrubs and soft woods usable best for pulp to make paper. We know what happened-the millions and millions of native hardwood forests were consumed in approximately 50 years from approximately 1875. Moreover, our best estimate is that 2/3 of the cut timber was wasted. The question we are interested in is why it happened.

Our typical response is to say that greedy land and lumber barons-developers-looted and pillaged the land by capturing government and creating laws to sanction their avarice. Passing such moral judgments upon our ancestors warms the ego. There are, of course, enough anecdotes and examples to fill our historical image with dour, black suited, mustachioed men with their hands hidden in their top coats, so we imagine they are grasping something hidden.

The historical record is more complex. It is filled with trivial, undramatic, and uninteresting events that-cumulatively-help explain why people of immediate vision destroyed a natural resource that could have benefited our population for centuries. We find that people in this area at this time in history:

  • Relied completely on the market processes, which render everything to a money calculus; and the most immediate needs must be paid, mortgages must be discharged, and current bills must be met. These are legal rules that define what takes place in the woods operations.
  • Responded to the most obvious and immediate needs, e.g.; building lumber, railroad ties, telegraph poles, fence posts, fuel for homes and riverboats-without any comprehensive market that might have differentiated the range of quality and types in forest products. They sold to any market that would meet the out-of-pocket costs, selling prime timber when inferior product would have served as well.
  • Had to borrow money at high-risk, short term rates rather than longer term capital financing.
  • Had clear cutting means cutting the point of maximum economic return under pressure to turn lumber into cash.
  • Had no concern for the loss by fire that destroyed most new growth and soil conditions favorable to new growth. Slash-the toppings and limbs from felled trees-was left strewn about instead of being carted off or burned under supervision.
  • Had an underlying bias in favor of active exploitation of land, e.g., court doctrines favoring specific enforcement of time limits in contracts for cutting of timber and labor liens for loggers.

–Professor Richard Aaron

Cowardice and Religiocity

The room fell deathly silent as she spoke. “Being religious is not cowardice,” she emphasized.

We were sitting in a discussion group meeting of the Humanists of Utah, discussing the roots of humanism. My friend, disillusioned with religion and therefore curious about humanism, had grown more and more frustrated as first one religion, then another, was knocked in straw man fashion: Being religious is the coward’s way out. She waited, and finally she could stand it no longer: “Being religious is not cowardice.”

The words were a new relaxation of thought for me. For years, I have debated what it was to be religious, especially when relating to humanism. Humanism has always taken a view of “nontheism,” a seemingly careful word stating its disassociation from theism: careful in respect of not necessarily wanting to declare an atheist (nonbelief in God) attitude, but wanting to make clear its concern with the belief in God. To say it bluntly, humanists are skeptical, often cynical, of any supernatural claim, and rightly so. This has lead to much concern, therefore, with “religion.”

Religion in the Western world is most often associated with Christianity. Much of the Renaissance and modernistic thought has stemmed from concerns with Christian dogma, fundamentalism, and the historic Crusades. Christianity, in the actions of her church, has clearly shown more of a detriment to society than anything positive and beneficial.

But is religion just Christianity? What of Buddhism, Confucianism, Taoism, or the Pagan belief of the ancient days? But more than just these belief systems, what of the organizations that use these belief systems as their basis?

It seems clearly, that in humanism, the concern has not been with religion as a whole, or the belief systems, but with the negative actions that stem from parts of these belief systems. Dogma erupts, and instead of an evolution of beliefs, and adaptation to new, scientifically verified, information, people cling to outdated, erroneous, belief systems, that, though they may have worked sufficiently in years past, fail miserably in the present.

The concern, therefore, becomes “Does religion focus on human beings, and the most efficient method to solve problems?” The answer increasingly has been no. The nature of humanism, and its moral focus on human beings, is the hope of today, and a focus for our directions tomorrow.

Because of this, the original signers of the first Humanist Manifesto stated: “Religions the world over are under the necessity of coming to terms with new conditions created by a vastly increased knowledge and experience. In every field of human activity, the vital movement is now in the direction of a candid and explicit humanism. In order that religious humanism may be better understood we, the undersigned, desire to make certain affirmations which we believe the facts of our contemporary life demonstrate.”

Case in point: They talked of religious humanism.

The concern, as expressed in the first Manifesto: “There is great danger of a final, and we believe fatal, identification of the word religion with doctrines and methods which have lost their significance and which are powerless to solve the problem of human living in the Twentieth Century.”

The concern is not fundamentally with the term “religion,” but with “doctrines and methods which have lost their significance.” I think the dogmatic rejection of the belief in God does this as does any other outdated religious belief. Humanism needs to move beyond its petty struggles of cynical realism, and move to the affirmation of human life in this world.

This does not mean letting go the ethic of nontheism that is so crucial to focusing on this mortal, mundane, life. It does mean focusing on the greater good. Religion, historically, has always strived towards this. Being “religious” is a description of our great moral senses, and of our yearning to strive for betterment.

In the words of Edward O. Wilson, prominent biological scientist, humanist, and two-time Pulitzer Prize winner:

“.I had no desire to purge my religious feelings. They were bred in me; they suffused the wellsprings of my creative life. I also retained a small measure of common sense. To wit, people must belong to a tribe; they yearn to have a purpose larger than themselves. We are obliged by the deepest drives of the human spirit to make ourselves more than animated dust, and we must have a story to tell about where we came from, and why we are here. Could Holy Writ be just the first literate attempt to explain the universe and make ourselves significant within it? Perhaps science is a continuation on new and better-tested ground to attain the same end. If so, then in that sense science is religion liberated and writ large.” (Consilience, Edward O. Wilson)

The desire to reach beyond the sky is at the heart of religion and the heart of humanism: a common bond that humanism needs to associate with, not pull away from. Instead of denying “religion,” humanism exists to not just redefine religion, but to help see what religion really is, and therefore, who we as individuals, and as a human society, really are.

As Dr. Wilson so adroitly stated, “The moral imperative of humanism is the endeavor alone, whether successful or not, provided the effort is honorable and failure memorable.” Therefore, the endeavor is intrinsically religious.

Humanism is the religious endeavor that fights down the cowardice towards change, towards action, and towards objective, freethought. Humanism is religious courage.

–David Evans

The Origins of Humanism

Richard Layton’s Discussion Group Report

“Humanistic scholarship has been of decisive importance in the history of Western culture,” says the Encyclopedia Britannica. “It inspires a mental and moral attitude…that makes human consciousness the alpha and omega of all thinking.” “Man is the measure of all things,” said Protagoras in the fifth century BCE; the individual is the center of all values.

Humanism has undergone several declines and rebirths since the time of the poet Homer. The latest rebirth began in the 1890’s, as recounted by Edwin H. Wilson, who had been a founder of the American Humanist Association, editor of The Humanist, and a minister of the First Unitarian Church in Salt Lake City, in an article in the January-February, 1991, issue of The Humanist.

The modern humanist movement emerged from liberal religious change. The influence of the enlightenment, Darwin and biblical criticism encouraged liberal trends in Unitarianism, Universalism, the Ethical Societies, and Reformed Judaism. A growing literature reflected the influence of evolutionary thought, especially in the rejection of the Bible as the source of revealed truth. Religious radicals and independents gravitated to an organization known as the Free Religious Association, with Ralph Waldo Emerson as its first president, and Felix Adler, founder of the American Ethical Societies, and others as members. The forerunners of our evolutionary, naturalistic humanism, they were humanistic theists. Keeping theistic terms, they redefined them. A controversy broke out between east and west, between those who wanted to pin down Unitarianism to its Christian antecedents and those who wanted a free association with no dogma or creed. It culminated in the establishment of the right of the lay doubter to membership in Unitarian churches, and the principal issue became the right of ministers who no longer believed in a supernatural god or immortality to fill Unitarian pulpits.

Born in 1898, Wilson, as a young man, observed the passing on of ignorance and superstition from generation to generation in Catholic and fundamentalist churches. He began to think of the liberal church as an educational instrument for change. He heard U.S. Prison commissioner Sanford Bates state, “There is not one belief that I hold that I would not change on five-minutes notice if I ran into a new fact.”

The strategy of the liberal religious traditionalists in dealing with change was to ignore it. Humanism was a forbidden word in establishment talk. In his article, Wilson opined, “How a religious organization deals with change is one test of its ultimate integrity and its adaptation to changing needs in a changing world. Unitarians have done well with change. Tolerance and pluralism are built into its creedlessness.” While studying in the Unitarian Theological School in Meadville Pennsylvania, Wilson spent his spare time avidly reading everything about humanism he could lay his hands on. He concluded, “That is it! Humanism has time, science, and human need on its side. I’ll stick with it!”

Later, while at the University of Chicago, he was turned off by behaviorists who disclaimed any compassionate interest in how their research was used and by graduate students planning to go into private industries as advisors to profit-makers. Curtis W. Reese helped him reach the conclusion that he could best serve his goals in the liberal ministry. At this moment the beginning of an organized humanist movement occurred.

Following Reese’s publication of a series of books including Humanist Sermons, Humanist Religion, and The Meaning of Humanism, a deluge of humanist scholarship occurred. Important books published were John Dewey’s A Common Faith, Julian Huxley’s Religion without Revelation, Roy Wood Sellars’ Evolutionary Naturalism and The Next Step in Religion, A. E. Haydon’s The Quest of the Ages and Corliss Lamont’s The Illusion of Immortality and Humanism as Religion. An annual bound series of selected sermons called Humanist Pulpit was published by John Dietrich and received commendations from Albert Einstein and Charles Francis Potter. From 1927 to 1938 the Meadville students put out a mimeographed publication called The New Humanist with a regular column by Wilson. This column evolved to show how humanist ideas were expressed in society at large in many ways. Harold Buschman was the editor and Wilson the managing editor. This magazine was the true forerunner of The Humanist.

Under the inspiration of Professor Haydon, a Humanist Fellowship was organized with members from the University of Chicago, Meadville, and other adjacent schools; but with graduation and campus transience, it later disappeared. The New Humanist published “A Humanist Manifesto.” Raymond Bragg, Reese, Haydon, and Wilson circulated a revised first draft written by Sellars and incorporated many invited comments. It became a consensus document and was then published separately as Humanist Manifesto I. They looked for new and promising young writers to supplement the publication’s academic content, avoid a narrow dogmatism, keep abreast of the literature, and involve important writers in the movement. Now more than just a publishing organization, they were a fellowship of like-minded supporters of a cause generating commitment. The name of the sponsor of the magazine was changed to the American Humanist Association, and the word New was omitted from the publication’s name. The signers of the Manifesto were all secularists. They had washed their hands of the supernatural, saying, “The time has passed for theism.”

“However,” says Wilson, “secular versus religious is a false issue. By doing some homework-specifically, by reading Julian Huxley’s Religion without Revelation or John Dewey’s A Common Faith, we could do much to dissolve this divisive issue among humanists. The dictum of Terrence-‘I am a man; nothing that relates to man do I deem alien to me’-suggests a resolution within a pluralistic humanism. The North American Committee for Humanism, through its Humanist Institute and Humanist Weekends is promoting much-needed unity and cooperation among humanists. As a movement…from many backgrounds…gradually finding itself, we are now coming together for the good of all.”