Law as dance, theater, or music: legal procedure and ritual

Cross Currents, Summer, 2002 by Rafael Chodos

Especially in times like these when we are bombarded constantly with the most vulgar conceivable images of law--when "justice" is in danger of becoming little more than a euphemism for revenge, and law little more than the machinery of military and political power--it is important for us to remember how law is, in its essence, something infinitely sweet, refined, and delicate. Properly understood, Justice is not unlike artistic or religious Truth and law has much in common with religious ritual, although I shall argue that it is something much more noble than religious ritual.

Jewish legend tells us that when God was creating the world, during the sixth day, not only did He create those things which are expressly mentioned in the opening chapters of Genesis--Man and Woman and all the other living creatures--but He also created other things which turned out to be necessary to the history of the world. Among these were the tablets of stone on which Moses wrote the Ten Commandments, as well as the Shamir--the magical worm that was able to bore through the hardest substance on the earth, which Moses needed in order to inscribe the letters on the tablets of stone. So powerful was the Shamir that when Moses held it in his hand he was able to bore all the way through the tablets and inscribe the letters just as if he were using a quill to write on papyrus; and so skillful was the Shamir that the letters which Moses engraved could be read equally easily, it is said, from either side of the tablets.

I always imagine that the Torah, too, through which the Law was presented in all its perfection, was created on the Sixth Day and that late in that day, as the sun was setting on the evening of the first Sabbath, the Torah ascended to the Throne of God and she threw herself at His feet, weeping uncontrollably in the presence of all the angels, and she said to Him, "Oh Lord, you have created me perfect, and until the Messiah comes at the end of time, mankind will not be perfect. How then shall I be received among men and how shall I be perceived in their midst?"

And God said to her, "I will create sages in every generation to interpret you and you will unfold through the ages as a flower unfolds, and you will be loved and admired more than any flower."

For the fact is that substantive Law requires application and has to unfold; and therefore we require procedural law that deals with the process of unfolding. Centuries of legal disputation have taught us that is not possible to understand law as a static construct. Ancient images of the law as a Temple which stands fixed and immutable throughout eternity, and into which we enter in awe as we seek to discern its architecture--those images must be relatively late, romantic conceits. They may perhaps be understood as fanciful elaborations of the familiar images of the columns and steles on which early codes were often inscribed: the notion of writing a set of laws on a stone surface may be very old but the conception of the law itself as a physical temple probably comes much later.

We may contrast the development of these static images of law as a Temple with what I believe are the truly archetypal images of law which date from much earlier times: images of a trial process in which a divine being sits in judgment over a soul. So we have the haunting image of the weighing of the soul in the Egyptian books of the dead. In the Papyrus of Ani, (1) for instance, which dates from about 1500 B.C. but which relies on a much older religious tradition, we see that there are rituals which the soul must perform as it leaves this world and goes towards the throne of Osiris where it will be judged to see if it is worthy of spending eternity in Lightland. Those rituals involve the recitation of various spells -- a funerary liturgy. The most familiar of these spells is the protracted Negative Confession, a long list of protestations uttered by the soul in which it assures various gods that during life the soul did not commit any of the many sins which might bar it from entering Lightland. "I have not committed robbery with violence.... I have not stolen....I have not slain men and women.... I have not stolen grain.... I have not purloined offerings.... I have not stolen the property of God.... I have not uttered lies...." and so on. In the Papyrus of Ani, there is a picture of the trial of the soul. It shows the human figure, tiny in the presence of the gods. Osiris is sitting on his throne, and Anubis, with the head of a dog, is presiding over the weighing of the soul of the deceased. This weighing process is terrifying because the soul is on one side of a balance scale, and on the other side is a feather, the feather of truth, Ma'at; and if the dust and other baggage which the soul accumulated in the earthly life weighs it down too heavily, if it weighs more than the delicate feather -- then the scale will tip against it. This is what the sharp eye of Anubis is checking for.

This archetypal conception of a trial in the Great Courtroom up in the Sky, a trial which takes place at the end of every life and which cannot be evaded -- this is a procedural conception, a notion of a process through which all of us must go. The essence of law was not, originally, the courtroom in which the trial took place (which was throughout most of our history, after all, the royal courtroom rather than a special legal court) but it was rather the trial procedure which unfolded in that courtroom.