Medicine for Society’s Ills: Sermon for the 8th Annual Medina County Red Mass

I’d like to share with you two vignettes from the life of Eric Funston and, I promise you, I will tie these in with the readings from Scripture that we have just heard, readings which the Common of Saints bids us read when we celebrate the life and ministry of St. Luke the Physician. The first vignette is the most recent.

A few weeks ago, my wife Evelyn and I had the opportunity to spend time together touring Scotland and, as part of that trip, we spent time in the Inner Hebrides, particularly visiting the Holy Island of Iona and the Isle of Skye. Our trip to Iona started in the port town of Oban, where we caught the ferry to the island of Mull. The Oban ferry takes you to the town of Craignure where you disembark and then drive (if you are daring) or take a bus for the hour-and-half, 37 miles to the village of Fionnphort where you board another ferry for the short voyage to the Holy Island. We opted to take the bus and so we were both able to enjoy scenery along the road, which (by the way) is a single-track two-way highway with wide places every few miles to permit traffic to pass in each direction. For much of the length of this highway one follows the River Lussa, which is a wide and, when we were there, very active and swift-flowing river. The River Lussa flows through the Lussa Glen (“glen” is the Scots word for a valley) on either side of which are very high, very steep hills; as someone who comes originally from the intermountain west I would call them mountains, but they are certainly bigger than any hill or mountain I’ve seen in Ohio! The source of the River Lussa, and all the rivers on the Isle of Mull, is the dew that collects and the rain that falls on these hills.

The same is true on the Isle of Skye which we visited a few days later. We stayed there in the town of Portree, the unofficial capital of Skye, and drove to visit other parts of the island, including a drive to the village of Talisker, home of the whisky of the same name. On the way we drove along the River Sligachan, which for nearly its entire length that day was white water, a rushing torrent of foam! As on Mull, the source of the river is merely the dew and rain falling on the high hills around it.

What was most fascinating for us was watching the water come down the hillsides to feed these rivers. You could see, through the mist and rain, its beginnings in small streams high on the hillsides, streams which then joined with others, and then others until they formed beautiful, dazzling waterfalls. We’ve been places in the world where they have made tourist attractions of the local waterfall … there are dozens, if not hundreds, of waterfalls feeding the rivers of Mull and Skye that would be many of those tourist-attraction waterfalls to shame. To be honest, after the first twenty minutes or so of the drive from Craignure to Fionnphort, or the drive from Portree to Talisker, I was sort of suffering waterfall fatigue: “Oh, yeah, another waterfall … great…” And all these waterfalls feeding these rushing, gushing, foaming, frothing rivers making their way to the sea.

Second vignette … about twenty-five years ago I was a litigator specializing in medical malpractice and medical product liability defense. I was also one of the five managing shareholders of the largest law firm in the state of Nevada: twenty-two shareholders, twenty-eight associates, and a whole slew of support staff. We owned our own 60,000-square-foot, four-story office building, on the third floor of which was our law library, the largest private law library in the state. Adjacent to the law library we had a large conference room which we called “The War Room”. When someone was in trial, it became our command headquarters; it was where we began our day before heading to the courthouse and it was where we ended our day debriefing what had happened in the trial. It was also where we kept the office liquor cabinet.

Often, when I was in a trial, after the client would leave, after the associates and the paralegals would go home, I would pour myself a drink, go into the library, and just sit there and look around at all those law books – this was in the days before Lexis/Nexis and Westlaw and computer-assisted legal research, when you had to know the key-number system and the index to ALR – I’d sit there and just feel the presence of all that law! … the Pacific Reporters, the Federal Reporters, the USCA, the Nevada Statutes, the Restatement of the Law, Corpus Juris and ALR, those odd tax publications by CCH and BNA, the specialty law journals to which we subscribed … all that massive flood of legal wisdom. Just sit there in amazement at the accumulated wisdom of the American legal system. Maybe some of it would soak into me by osmosis….

So who is this Luke we are commemorating this evening and why are we doing so at a service whose avowed purpose is to seek God’s guidance for those who sit on the Bench and those who appear at the Bar?

Well, to answer the second question first, St. Luke’s feast day was yesterday so it just seemed appropriate to recognize that and use the lessons assigned his feast today. Who he was is the only Gentile writer whose words appear in the New Testament, a Greco-Syrian physician from the city of Antioch who accompanied St. Paul in his later travels, perhaps was even with him in his imprisonment and at the time of Paul’s martyrdom (as our odd little reading from Paul’s Second Letter to Timothy suggests – “Only Luke is [still] with me”). Luke is generally acknowledged to be the author of both the Gospel which bears his name and the Book of Acts. Because he was a physician, the Common of Saints bids us read the portion of the Book of Ecclesiasticus, also called Sirach or Ben Sira, that we heard this evening, and it is to that Scripture that I would like to turn now.

The author of this text, Yeshua ben Sira, sings the praises of physicians, as we heard, and then goes on to praise others who contribute to society, the farmers and the artisans, the smith and the potter, but he does so with this interesting introduction: “The wisdom of the scribe depends on the opportunity of leisure; only the one who has little business can become wise.” Acknowledging that society depends on these tradesmen and craftspeople, he nonetheless says, “They do not sit in the judge’s seat, nor do they understand the decisions of the courts.” Although “they maintain the fabric of the world, and their concern is for the exercise of their trade,” the need to set hand to plow or to potter’s wheel, to spend their hours “on business” makes it impossible for them to “become wise”. “How different, says Ben Sira, “the one who devotes himself to the study of the law….”

That famous Ohioan William Howard Taft, Secretary of War, President, Chief Justice of the United States Supreme Court, once said, “I love judges, and I love courts. They are my ideals, that typify on earth what we shall meet hereafter under a just God.”

Ben Sira seems to have been of a similar mind. He believe that God would direct the counsel and decision-making of judges: “If the great Lord is willing, he will be filled with the spirit of understanding; he will pour forth words of wisdom …. He will show the wisdom of what he has learned …. Many will praise his understanding …. Nations will speak of his wisdom, and the congregation will proclaim his praise.”

So Ben Sira begins praising those who study and practice medicine and ends praising those who study and practice the law; as physicians and surgeons are to the individual, so lawyers and judges are to the community. As the former heal the ills of the body, the latter deal with the ills of society. Perhaps this is why Luke the Physician, who in his Gospel relates several individual healing miracles of Jesus, tells of the beginning of Jesus’ ministry not in terms of medical or physical healing, but in terms of social healing. Jesus, he writes, took the scroll of the Prophet Isaiah, and proclaimed in the synagogue that he had been anointed to bring good news to the poor, to proclaim release to the captives and freedom to the oppressed, to right the social wrongs usually addressed by the law and by the courts.

Ben Sira wrote that physicians and pharmacists extract medicines out of the earth, and that from God in this way health spreads over all the earth. I want to suggest to you that societal health promoted by the rule of law is much the same. Remember the dew and the rain falling on the high hills of the Scottish highlands and islands, coming down into a thousand thousand little streams and rivulets, joining into larger streams and cataracts, combining into great waterfalls, and eventually great rushing wild rivers. The law is formed in the same way, from a thousand thousand sources … from agreements between friends, from contracts among businesses, from proverbs and maxims by which we govern our lives, from the words of rulers, the founders of nations, legislative bodies, legal scholars, and yes, even judges in the courts. From a thousand thousand sources, the rules of society combining and interacting and joining together to form that great wild rushing river of law!

That is what I would marvel at on those late nights sitting along surrounded by the statute books, the case reports, the legal encyclopedias and law journals. Our library was like a great reservoir in which all of that wisdom, all of that great rushing river of law was gathered and stored, waiting someone to extract from it just the right rule, just the right canon, the right decision to solve this particular issue. Ben Sira wrote that the physician and the pharmacist extract medicine out of the earth, and that is what lawyers and judges do, extract from that great flood of law the solutions to many of society’s problems, the legal medicines to cure society’s ills.

The humorist Ambrose Bierce defined a lawsuit as “a machine which you go into as a pig and come out as a sausage.” I prefer to think of the work of our judges and courts in a different way – using a different metaphor.

Not all of the water that runs down the hills of Scotland flows into those rivers and out to the sea. A good deal of it soaks into the earth, filters down through the soil and then through lime stone and eventually forms aquifers that accumulate on the top of the granite which is the bedrock of Scotland; it flows in underground streams to emerge in various places as beautifully clear spring water. And then the Scots do this wondrous thing … they mix it with malted barley in the process of extraction, fermentation, and distillation that produces whisky. (Whisky gets its name, by the way, from the Gaelic uisce beatha, the “water of life”.)

It seems to me that rather than Bierce’s sausage grander, this is a better metaphor for what our courts do. It’s the lawyers’ job to bring before the judge, from that great reservoir of all that law from all its sources, the particular canons, statutes, maxims, and rules that he or she thinks best apply to the facts of the case. Lawyers do this by bringing motions, settling proposed jury instructions, filing briefs in the trial court or on appeal, and making oral arguments before the courts. Judges then have the task to take what the lawyers present and, if you will, mix it around with the facts of the case, sort of let it ferment and then distill out of all that the resolution, the answer that best provides justice and equity, that treats this particular wound on the body of society.

I know its fashionable for some politicians to decry and criticize “activist judges”, and to suggest that judges should only apply the law not make it, but that betrays a fundamental misunderstanding of the role of our courts. If that were all judges were supposed to do, we could program computers to take care of our lawsuits and criminal prosecutions – and dystopian fiction and B-grade science-fiction movies are filled with stories predicting (accurately, I think) what the horrible result of that would be – a sausage grinder, indeed! We do well to remember the words of the great jurist Oliver Wendell Holmes, Jr.: “The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.” The work of the court is like “painting a picture, not doing a sum.”

No! Judges are supposed to be activists! Courts and judges have always made law; in fact, courts and judges were making laws before there were legislatures to do so! And even now, because practically every case brought to court is unique unto itself, as the rules and maxims, the statutes and precedents are presented and applied to it, each case creates a little bit of new law, sometimes in unanticipated ways.

Just as the water that flows down the Scottish hillsides, even if it happens by some accident to mix with a some grain, doesn’t become whisky, the “water of life”, unless a master distiller sets his or her hand to it, his or her skill and knowledge and wisdom, so all those rules and maxims and statutes in all the law books don’t solve society’s problems, don’t treat society’s ills, unless a learned judge applies his or her skill and knowledge and wisdom.

Let us pray that, in the words of Ben Sira, that the great Lord will fill the judges of our courts with the spirit of understanding; that they will pour forth words of wisdom. Let us pray that the Lord will direct their counsel and knowledge, that they will have the leisure to become wise, and they will show the wisdom of what they have learned, so that the poor in our community will receive good news, the captives will be released, and all shall be freed from oppression.

In the Name of the Father, and of the Son, and of the Holy Spirit. Amen!