Theology, History and Law: Different disciplines with different methodologies

Although it is generally recognized that Theologians and Historians attempt to reconstruct history utilizing the tools of their professions, it is not quite appreciated that lawyers, too, have to interrogate the past and use their legal training to do so. I thought it might be of interest to do a brief comparison of how each profession proceeds.

Theologians start from a fixed position, that everything in the bible is true and that events of the past must be explained in such a way that it doesn’t conflict with biblical teachings. At the same time, theologians have to explain the vast archive of conflicting biblical passages in some way to harmonize them. This can often lead to a conflict between how theologians view history and how historians assess the past. Similar problems unfold with respect to science and other disciplines.

The early church fathers were quite aware of these types of problems and one of the principles they developed to cope with these problems was that if your understanding of a biblical passage conflicted with observed reality, then you have probably misunderstood the passage. This practice occasionally leads to the idea that certain biblical passages that appear to be factual claims are actually allegories. Nevertheless, theologians arguing about biblical truth often disagree with each other as to what that truth is. To a large degree, this fueled centuries of violent war and persecution between rival groups of Christians, all of whom knew the one and only truth. A similar construct would apply to wars among Muslim sects.

Historians proceed from a very different perspective. They start from the proposition that certain forms of evidence exist (or don’t exist) and set out to find what interpretation of events best explains the historical situation under investigation. A chief difficulty, of course, is that sometimes insufficient evidence exists such that a reasonably “probable” description of what occurred can not be found. Other times, their may be conflicting evidence, such as multiple documents, sometimes from different time frames, that present conflicting stories, and it may be difficult, if not impossible, to decide which source is more credible. At best, historians can only judge their conclusions on the basis of probability. Is the conclusion “almost” certain, “very” likely, somewhat likely, plausible, possible but improbable, or not determinable on the basis of the present evidence.

Lawyers present a hybrid of these two disciplines. The fixed position is what is best for the client, which doesn’t necessarily mean that the client is right. Each task must be determined according to that principle. In order to carry out that practice, the lawyer must examine every past legal case, where the facts or decision touches on his client’s interest. The lawyer is assembling a set of existing facts and then proceeds to determine what interpretation of these past events best serves the client’s interests.

Since no past case is always exactly alike in every single particular relevant fact, the lawyer needs to look at what court decisions look like they support the client’s interest and what court decisions oppose the client’s interest. Then, the lawyer has to tear apart both set of cases. For cases that harm the client, the lawyer must look at every single detail to find some way to distinguish that case from the client’s case such that the court shouldn’t apply that negative principle to the client’s situation. The lawyer must also look at every detail of cases that support the client’s interest to see how the opposing lawyer might distinguish them and argue that it is not applicable to the client’s case. Obviously, counter-arguments have to be conceived. Often times, a client’s case is sufficiently unique that there are no clear guidelines in past decisions, and the lawyers have to take the meager evidence and extrapolate arguments for and against the client’s interest, a form of exegesis perhaps. They key here, however, is not to find just any detail, but rather “relevant” details that can influence the case one way or another.

For a lawyer interested in biblical studies, the bible (or bibles) are like large collections of legal cases with frequently conflicting facts and decisions. If the lawyer has a particular theory about how to understand a portion of the bible, that theory serves as the client. The lawyer would then have to examine every relevant detail in the texts and from commentators outside of the text, and see what facts support his theory and what undermine it. This enables him to make the best case possible for his theory/client. That isn’t to say that the theory is the best explanation for what is true; it is only the best case that can be made for the theory. That best case, however, may be woefully inadequate, and like real-world legal cases, the lawyer must recommend that the client abandon the case or settle on some compromise.

Sometimes, however, members of one discipline cross over to one of the others and adopt the tools of the others. Sometimes, all three factions can come together on some past historical understanding and sometimes one  might be in conflict with the other two, who in turn might disagree with each other. So, whose right in the long run? Make your best case.

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