Pineda, Ana Maria

English

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Convenanting with the Powerless: Strangers, Widows, and Orphans

Fordham University School of Law

Fordham Law Review Volume 66 Issue 4 Article 11 1998 Convenanting with the Powerless: Strangers, Widows, and Orphans Ana Maria Pineda Follow this and additional works at: https://ir.lawnet.fordham.edu/flr  Part of the Law Commons Recommended Citation Ana Maria Pineda, Convenanting with the Powerless: Strangers, Widows, and Orphans, 66 Fordham L. Rev. 1177 (1998). Available at: https://ir.lawnet.fordham.edu/flr/vol66/iss4/11 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact tmelnick@law.fordham.edu. COVENANTING WITH THE POWERLESS:STRANGERS, WIDOWS, AND ORPHANSDr. Ana Maria Pineda, R.S.M.*_OR Christians, covenant is an inheritance of faith which estab-Ilishes a privileged relationship between them and God. Covenantpermits humans to be imbued not only with the capacity to covenantwith God but also with each other. While acknowledging this reality,Professor Joseph Allegretti uses the words of Bouma to admit that"[h]uman covenants are not all-encompassing ... and their origins arenot as one-sided as is God's covenanting with us."1It is this particular truth that creates the space for my reflection:the fact that human beings are limited, fragile, and still very muchenroute to achieving wholeness. The journey to achieve wholenessand integration is a life-long undertaking. It cannot be accomplishedeasily or completely. Humans hope for a wholeness that is not fullywithin their immediate grasp. Consequently, human beings live moreaptly with the hope of attaining this reality rather than ever possessingit.In an ideal world, the theological concept of covenant as it mightplay out in the lawyer-client relationship might make it possible totake mutual actions of risk and commitment. We, however, do notlive in an ideal world. We live in a world still in need of redemption; aworld in which men and women struggle daily with the challenge ofconfronting evil and restoring good. In this kind of world, is it reallypossible to count on an equality of relationship between lawyer andclient such as is suggested in Allegretti's paper? We turn to the Chris-tian tradition to seek an answer to this question.The Christian tradition has throughout its history upheld the prefer-ential concern for "widows and orphans" precisely because they werethe members of society most disenfranchised, least protected, mostvulnerable, and most exposed to harm. This reality obligated thestronger, more influential members of society to look out for theneeds of the less fortunate, those who had no options or recourse.The Old Testament also contains a moral imperative of hospitalityfor "aliens and strangers" because in human societies they have often* Ana Maria Pineda, R.S.M., is a native El Salvadorean. She is on the faculty ofthe Religious Studies Department at Santa Clara University in Santa Clara, Califor-nia. She is also a member of the Academy of U.S. Catholic Hispanic Theologians(A.C.H.T.U.S.), and holds an S.T.D. in pastoral theology from the Pontifical Univer-sity of Salamanca, Spain.1. See Joseph Allegretti, Lawyers, Clients, and Covenant. A Religious Perspectiveon Legal Practice and Ethics, 66 Fordham L. Rev. 1101, 1119 (1998) (quoting HesselBouma III et al., Christian Faith, Health, and Medical Practice 84 (1989)).1177FORDHAM LAW REVIEWbeen in danger. This obligation was made clear in the Old Testa-ment's Book of Leviticus:When an alien resides with you in your land, do not molest him.You shall treat the alien who resides with you no differently thanthe natives born among you; have the same love for him as for your-self; for you too were once aliens in the land of Egypt. I, the Lord,am your God.2In the New Testament, Jesus identifies with the person of the stran-ger when he says: "For I was hungry and you gave me food, I wasthirsty and you gave me drink, a stranger and you welcomed me ....In doing so, Jesus makes the care of the unprotected stranger a re-sponsibility, a moral imperative because Christ is seen in each face.In the case of migrants for example, in looking out for the aliensand strangers of today, the National Conference of Catholic Bishopshas said the following: "The Church, the People of God, is requiredby the Gospel and by its long tradition to promote and defend thehuman rights and dignity of people on the move, to advocate socialremedies to their problems .... 4In this context of migrants, those that stand in danger of death, ofsuffering injustice, or that which violates human dignity, require spe-cial consideration and have a moral right to receive such care and pro-tection from others. In the Christian tradition, the most needy mustbe favored, and among these are the migrants, refugees, and culturallydifferent groups.5 In fact, "[i]t is against the common good and it isdeemed unacceptable to have a double society, one visible with rightsand one invisible without rights ... ."' In the case of persons dis-placed from their homelands due to persecution and threat of death,the trauma of their experiences gives them a claim to enjoy the pro-tection of others. They are often subjected to threats and intimidationand have a special moral claim to sympathy and assistance.7The case of the stranger and the alien points out the inequality thatexists among humankind. While all are created by God and possessthe right to dignity, the unequal circumstances experienced by people,as in the case of immigrants, make some privileged and others vulner-able and in need of protection. This kind of inequality makes it diffi-cult for such persons to establish an equal relationship like thecovenant model offered by Allegretti.2. Leviticus 19:33-34 (New American 1987).3. Matthew 25:35 (New American 1987).4. National Conference of Catholic Bishops, Resolution on the Pastoral Concernof the Church for People on the Move (November 11, 1976), in Pastoral Letters of theUnited States Catholic Bishops 169 (vol. IV 1975-1983), quoted in U.S. Bishops' Com-mittee on Migration, One Family Under God 7 (1995).5. U.S. Bishops' Committee on Migration, One Family Under God 9 (1995).6. Id. at 8 (quoting National Conference of Catholic Bishops, Together a NewPeople 9-10 (1987)).7. Id. at 9.1178 [Vol. 66THE THEOLOGICAL PERSPECTIVEThere are other aspects of Allegretti's model that require furtherexploration. What does one do when dealing with a client from an-other culture where the limitations of local customs and languagemake them even more vulnerable and less likely to understand thebasic implications of making certain decisions? What does one do insituations where the cultural values and norms operate differentlythan those upon which the U.S. legal system is founded? How arediffering codes of honor and communal responsibilities dealt with in alegal system that is not one's own? What does a lawyer do with clientswhose experience or knowledge of the legal system is based on thelegal systems in their home countries or cultures that have beensources of oppression and have a long history of violating humanrights? The trust factor between lawyer and client is compromised atbest. Is it possible under these circumstances for lawyer and client tohave a covenant relationship?The covenant concept is an important one. It is an ideal model toconsider in the relationship between lawyer and client. Perhaps, it iseven a model that should be pursued by lawyers in the service of theirclients, as Aliegretti proposes. At the same time, the broader realitiesthat enter into the daily lives of clients provide an on-going challengethat merits the careful consideration of lawyers. While a covenant re-lationship may be held out as an ideal, a lawyer must still face theunequal factors that ultimately demand the breadth and depth of his/her professional skills and responsibilities. In fact, if the covenantidea is to be carried out to its fullest, those espousing it must keep inmind that the ultimate sealing of the covenant is the death and resur-rection of Jesus. How is this kind of self-giving translated to havemeaning and purpose in the relationship between lawyer and client?Perhaps the covenant's most foundational truth is that it exists pre-cisely because of the vulnerability of the relationship. It is the needand weakness of the client that requires more from the lawyer thanthe establishment of an equal relationship. If a lawyer is to realize thepotential of a covenant relationship with a client, s/he will be led to amodem day preferential concern for the "widows and orphans" thatseek out their professional services. In responding to this Christianimperative, it will ultimately require the lawyer to give of his/herself inorder to protect and secure the client's right to fair and just legal rep-resentation. In fact, the lawyer will seek to use his/her skills to makeup for whatever vulnerability places the client in an unprotected legalsituation. Following the covenant ideal, the lawyer must bear in mindthat the ultimate sealing of the covenant in the Christian tradition wasbased on the vulnerability of humankind.1998] 1179Notes & Observations

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Convenanting with the Powerless: Strangers, Widows, and Orphans

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