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17 Notre Dame J.L. Ethics & Pub. Pol'y 521 (2003)


This is part of a broader exploration of the suggestion that the biblical prophets-Moses, Isaiah, Jeremiah, Amos, Nathan, and the others-are sources of ethical reflection and moral example for modern American lawyers. The suggestion appears to be unusual; I am not sure why.

The Prophets were, more than anything else, lawyers-as their successors, the Rabbis of the Talmud, were. They were neither teachers nor bureaucrats, not elected officials or priests or preachers. And the comparison is not an ancient curiosity:

Much of what admirable lawyer-heroes have done in modern America has been prophetic in the biblical sense-that is, what they have done is like what the biblical prophets did. Dean Charles Hamilton Houston and the early civil-rights lawyers come to mind. Both the biblical prophets and these modern American lawyer-prophets were angry at injustice and firm, even noisy, as they spoke out against injustice. They brought prophetic anger at injustice into the public square in America.

Both the biblical prophets and modern American lawyer prophets courted danger. Both suffered. For both, things did not always turn out well, because prophets are not deal makers; they are stubborn; they demand more than conventional common sense stands ready to grant them. Maybe one reason they do not get put in our legal-ethics texts is that they are too stridently focused, as their biblical counterparts were, on the practice of law (the practice of biblical prophecy) as communal concern for social justice. The communal part insists on the "we." The concern for social justice in part insists on what modem Catholicism has come to name the preferential option for the poor (and then pays little attention to).

Both parts of the agenda (the "we" and the concern) aim to be relentlessly radical. Prophets speak to communities as what Professor Milner S. Ball calls the mouth of God,' because the God of the Prophets speaks to communities. The Prophets speak for this God and they speak more to communities than to individuals. It is a matter of we, not I. The teachers I have turned to in thinking about the prophets as lawyers-Professor Ball, Rabbi Abraham Joshua Heschel, Sister Joan Chittister, Justice Louis D. Brandeis, Professor

Walter Brueggemann 2 -speak, as all of the prophets, modern and scriptural, speak, in the first-person plural. It is "we" they talk about. It is "us" to whom the prophets speak-to "us" as in "us Americans" sometimes, but more radically to "us" as in "us believers." (I am thinking here mostly of us believers who happen to be lawyers.) I turn, then, to an attempt to develop five observations that might help focus on this prophetic "we" in the public square: (i) one of these has to do with community as the anthropological and scriptural place in which we find ourselves; (ii) one has to do with the fact that prophetic faith is inevitably about politics, and particularly (iii) politics as it is discerned and proclaimed from the communal quality of belief, (iv) one has to do with the restlessness of prophetic politics; and (v) one has to do with the importance of beginning at the bottom.


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