Bob's blog – A skeptical lawyer

Why am I writing about legal apologetics?

Posted on February 17, 2018

On the stage of the New York Hippodrome, Houdini exposes techniques used by fraudulent mediums.

I never wanted to be part of a culture war, and I certainly never wished to spend several years of my spare time studying Christian apologetics. I want to be a mystery writer, and I still hope to achieve that ambition after putting apologetics in my rearview mirror. So why do I feel compelled to debate legal apologetics?

In the December 1999 Texas Bar Journal, I read a review of Faith on Trial by Pamela Binnings Ewen. The review said that Ewen tried to answer the question, “If the testimony of the Gospels were held to the same standard as any other testimony within a U.S. court of law, could a jury accept the death and resurrection of Christ as a fact?” The idea struck me as absurd, and I thought no more of it for a few years. A friend and colleague later encouraged me to read the book.

After reading Faith on Trial, I initially felt that it was more dishonest than absurd. I believed Ewen intended to deceive her readers with dishonest legal arguments that might seem impressive to nonlawyers who would not understand how she mischaracterized the law. On further reflection and a considerable amount of research, I realized I was way off base to think Ewen intended to mislead anyone. Like many earlier Christian apologists, Ewen sincerely believes that evidence proves Jesus’ resurrection. In fact, I now understand that Ewen makes few original arguments while repackaging earlier (and quite sincere) apologists such as Simon Greenleaf.

Despite their genuine belief that they are sharing the world’s most essential truth, I still maintain that legal apologists unintentionally mislead their readers, especially nonlawyers. One may believe anything by faith, but the notion that lawyers can prove Jesus’ resurrection by evidence admissible in court does not bear close examination.

Evidentialist apologists – both legal and nonlegal – uniformly present a one-sided assessment of the alleged evidence. I could hardly be surprised or offended that people of faith present a case biased toward faith, except for the fact that so many of them purport to objectively present both sides in order to allow the reader to come up with a verdict. Ewen claims, “Where it is necessary, opposing views have been presented, with a response if appropriate,” and “We will begin by assuming the burden of our missing opponents to examine the character of the witnesses for truthfulness and untruthfulness, a process ordinarily provided a cross-examination.”

A lawyer cannot effectively represent both sides of a dispute. In real life, a lawyer would violate the Rules of Professional Conduct by representing opposing parties. Richard Feynman observed, “You must not fool yourself – and you are the easiest person to fool.”[i] And, Feynman said that to his fellow scientists – a group that, at least in theory, has little reason for prejudice toward any particular result. Lawyers have legitimate reasons to be biased. We are duty bound to represent our client’s side of the case, so we sometimes fail to empathize with the other side. Tunnel vision is an occupational hazard for lawyers, and we tend to believe our own BS.

I enjoyed reading The Trial of the Witnesses of the Resurrection of Jesus by Thomas Sherlock. Sherlock was not a real lawyer, but, in 1729, he was the first legal apologist to write in the form of a mock trial. Although Sherlock presented an argument slanted in favor of his Redeemer, he at least managed to write interesting arguments for both sides. In my humble opinion, the lawyers who followed in Sherlock’s footsteps have failed to present an evenhanded case.  

It is a fool’s errand for any lawyer to try to present the case both for and against Jesus’ resurrection. Nonetheless, lawyers have been claiming to do exactly that for almost three centuries since Sherlock. Except for a few cursory comments by ex-Mormon Richard Packham (which I will discuss in later posts), skeptical lawyers have said little in response.

My reaction to this situation resembles Harry Houdini’s disgust with fake spiritualists who used the techniques of professional magicians. However sincere they may be in their beliefs, legal apologists use the tools of my honorable profession to mislead credulous people. This offends me.

In sum, I feel I must respond to the bogus arguments of legal apologist because no one else has done so. The world has had enough pretend trials in which legal apologists purport to represent both sides. We need a real debate with real lawyers on both sides.

[i] Richard Feynman, Surely You’re Joking Mr. Feynman 329 (W.W. Norton & Co. 1997).