Nancy Black Sagafi-nejad. Friends at the Bar: A Quaker View of Law, Conflict Resolution, and Legal Reform. Albany: State University of New York Press, 2011. xvii + 254 pp. $75.00 (cloth), ISBN 978-1-4384-3413-1.
Reviewed by Jane E. Calvert (University of Kentucky, Department of History)
Published on H-Law (October, 2013)
Commissioned by Christopher R. Waldrep (San Francisco State University)
The Religious Society of Friends (Quakers) has a remarkable legal history. Initially brutalized by a legal system intolerant of religious dissenters, Quakers in late seventeenth-century England embraced the system of their oppressors and used it for good, seeking to reform it while they challenged its injustices. Today, Anglo-American jurisprudence and civil society owe much to Quaker activism. Impelled by their religious principles of peace, harmony, and truth, Quakers initiated or helped secure many reforms that we take for granted, including the conduct of legal proceedings in English, the independence of juries, religious liberty, freedom of speech and assembly, the abolition of slavery, women’s rights and suffrage, conscientious objectors’ rights, and voting rights for minorities. Although scholars have worked on the legal history of the Friends’ early years, little has been written on their recent efforts, and few Americans know about either. No detailed study has ever addressed the challenges or the benefits of using Quaker principles in today’s legal environment.
Those who do know about the Quakers’ significant contributions, or those who are simply interested in making our legal system less adversarial, dishonest, and rapacious and more cooperative and conciliatory, will welcome Nancy Black Sagafi-nejad’s recent book, Friends at the Bar: A Quaker View of Law, Conflict Resolution, and Legal Reform. A Quaker and a lawyer herself, Sagafi-nejad seeks to offer solutions for Quaker and other lawyers who experience ethical dilemmas in their practice of law. She wants to help them move beyond the “adversarial win-lose thinking” (p. 188) of conventional legal proceedings and look to alternative dispute resolution (ADR). To accomplish this goal, she divides her discussion into two sections. The first three chapters give historical background on the origins of the Religious Society of Friends and their legal activities through the eighteenth century. The second three chapters describe Quaker legal activities in the twentieth century, detailing challenges that Quaker lawyers confront in trying to maintain their religious principles, and offering suggestions for dealing with these challenges and shaping the legal profession according to Quaker ideals.
Sagafi-nejad is not a scholar, but a lawyer; and this is less a scholarly monograph than a handbook for lawyers. This review, written by an historian for a scholarly venue, will therefore be somewhat inappropriate to the book’s purpose. Even so, readers may find it useful nevertheless. Sagafi-nejad makes clear her purpose: “Are there lessons to be learned from early Friends?” she asks (p. 1). She wants to explore “the possibilities of learning from the past to help shape the future” and to promote “a possible revival of early Quaker methods of settling disputes outside the courts” (p. 65). With this aim, the book inadvertently raises interesting methodological questions about the use of history in our democratic society. Which is better for public consumption--salutary democratic myths about our ancestors that may inspire us to better ourselves, or history with all of its messy complications, painful lessons, and flawed historical actors? Must our heroes and role models be perfect, or might we learn from their human failings?
Sagafi-nejad’s answer is implicit in her retelling of early Quaker history. Eschewing recent work, she relies mainly on scholarship published before 1990, much of it by Quakers themselves, presenting a mythological version of Quakerism. Although not untrue (all good myths are based on some truth), her story omits the complications that make history difficult, but truly instructive. The myths in question are that Quakers, compelled by their religious testimonies, have always been peaceful, harmonious, and scrupulously honest in their dealings with each other and with non-Quakers. Although Sagafi-nejad admits that “Friends, like other imperfect beings, have tried to attain integrity or wholeness with varying degrees of success” (p. 12), she presents only the success stories and offers a sanitized, idealized version of early Quakerism.
Most obviously problematic is Sagafi-nejad’s characterization of the Peace Testimony. “Friends,” she says, “have enduringly held fast to opposition to war” (p. 14). And, she reiterates, “Quakers have always rejected war as against God’s will” (p. 20). But contrary to these claims, the Peace Testimony was neither a component of very early Quakerism nor uniform through the eighteenth century. The earliest Quakers fought in Oliver Cromwell’s army; in New England they fought in King Philip’s War of 1675-76; in North Carolina they took up arms in Cary’s Rebellion of 1711 and the Regulator Movement of 1765-71; and in Pennsylvania they took up arms to defend Philadelphia in the 1764 Paxton Riot. But even if we treat these instances as anomalous, the Peace Testimony underwent a significant redefinition and reapplication in the mid-eighteenth century, expanding from an individual decision not to engage in war to a matter of state. Some historians have argued that Quakers only began objecting to paying taxes for defense as a political tactic to maintain control of Pennsylvania.
Yet not only does Sagafi-nejad claim that Friends maintained a “refusal to fight, either in war or in their relations with others” (p. 9), she also claims that “Friends believed that to have unity in their search [for God], they had to forgo any desire to impose unity on each other” (p. 21). But the facts do not support these assertions. She does not mention the Friends’ contentious struggle to establish their ecclesiastical government, which produced Robert Barclay’s Anarchy of the Ranters and other Libertines (1676)--a tract directed at disorderly Quakers informing them of their need to be governed and the right of other Friends to impose unity upon them--or the resulting Wilkinson-Story Separation, in which some Quakers revolted at the new restraints on their liberty. Nor does she mention the 1692 Keithian Controversy, which threatened to undermine early Pennsylvania. She depicts William Penn as representative of broader Quaker interests and as the originator of all Pennsylvania’s Quakerly laws (chapter 3). But, in fact, Penn was less doctrinaire than were his coreligionists in the Pennsylvania Assembly, a difference that caused him significant difficulties, not the least of these his lack of awareness of many of the laws they passed without his approval.
Sagafi-nejad writes, “The testimony of community and harmony was manifest in the province’s preference for solving disputes by peacemakers both within and without the Society of Friends” (p. 64). Although the Friends undoubtedly showed a preference for harmony, they often lacked the will. Penn bitterly lamented the contentiousness of his fellow Quakers, so much so that he appointed as his deputy a Puritan military officer to bring order, which only made Friends resist harder. Quaker Pennsylvania was known around the colonies and in Britain not only for fractiousness among Friends, but also for the discontent of those living under Quaker hegemony. Sagafi-nejad also downplays these facts. “In principle,” she writes, “Friends’ long rejection of swearing oaths presented little difficulty in Quaker-dominated Pennsylvania” (p. 52). Had she consulted the primary sources, she would have found non-Quakers objecting strenuously to Quaker judges and officials not just for prohibiting the oath among non-Friends, but also for enforcing the affirmation. And this was just one of many ways that non-Friends resented the imposition of Quaker testimonies upon them.
Sagafi-nejad crosses the line from myth to mistake when she claims that Pennsylvania abolished slavery “decades before” it was illegal elsewhere (p. 52). Although Quakers were leaders in the abolitionist movement, Vermont was the first state to abolish slavery in 1777. Pennsylvania abolished it in 1780, only a few years before other northern states. Another complication that does not appear in her account is that Quakers also owned slaves themselves and, until the latter part of the century, were reluctant to free them. But there is a valuable lesson in the Quakers’ journey to abolitionism that might have been instructive had Sagafi-nejad chosen to confront the struggles among Friends rather than to ignore them. Quaker abolitionist Benjamin Lay’s harsh accusations against slave-holding Friends in the 1730s, for example, not only did not convince them to give up slavery, but got him disowned by the Society. It was John Woolman, with his gentle persuasion, who convinced Friends to abandon the practice, a fact that strongly reinforces Sagafi-nejad’s argument.
Sagafi-nejad insists repeatedly that “Quakers aim not only to tell the truth, but the complete truth” (p. 157). But they have not always been as forthright as she portrays them. Even as she depends heavily on Craig Horle’s work on Quakers and the English legal system, she elides his finding that “Friends often appeared to be adopting any strategy to gain their freedom and defeat their adversaries,” including subterfuge, fraud, and tampering. They continued these tactics at least into the 1790s. For example, there is a fascinating 1791 exchange between Quakers and John Dickinson, a prominent Philadelphia lawyer and Quaker fellow-traveler (whom Sagafi-nejad describes as falling away from Quakerism [p. 56], when the opposite was true). At issue was a plot of land purchased from Dickinson by William Geisse. In keeping with Quaker belief, when selling the land, Dickinson sought assurance from Geisse that he would not use it for theater productions. When Geisse did so anyway, Quakers urged Dickinson first to “bribe the rascals,” then to sue. As the suit went forward, it became clear that Dickinson would lose. Quakers then urged Dickinson to procrastinate--an old Quaker technique, according to Horle--and effectively win by default, which Dickinson could easily do, as he was one of the wealthiest men in Philadelphia. Here Quakers were willing to use any means to win, and it was Dickinson who objected, saying he could not in good conscience “distress his Opponent, by the weight of his purse.” We cannot understand this matter as an instance in which Quakers were “buffeted by the prevailing customs of contemporary law practice” (p. 147). In the eighteenth century, when Quakers dominated Philadelphia society, including the courts, their actions set the tone, not the reverse. We must then wonder how much of America’s contentious legal culture was initiated by Friends, master manipulators of the legal system.
Had Sagafi-nejad availed herself of recent scholarship on early modern Quakerism, she might have supplemented her narrative by examining these and other instructive difficulties that Friends have encountered. But she does not cite studies by Meredith Baldwin Weddle on Quaker pacifism in the seventeenth century; Jack Marietta and G. S. Rowe on crime and punishment in Quaker Pennsylvania; John Smolenski on early Pennsylvania politics; or my own work on Quaker constitutionalism, which explores the origins of civil disobedience, a tactic that Sagafi-nejad assumes Quakers practiced but one that she does not interrogate. Nor does she explore more recent Quaker writings, such as Jackie Leach Scully’s and Pink Dandelion’s edited volume on Friends’ perspectives on good and evil.
What are we to make of these significant shortcomings of seventeenth- and eighteenth-century Friends? First, we must ask if they are truly shortcomings. Although these episodes complicate Sagafi-nejad’s narrative of the truth- and harmony-seeking Friends, they do not negate it. There is a reason that Quakers did not experience a major schism until 1827-29 and that they are the only religious sect born of the English Interregnum still surviving over 350 years later. Something about Quakerism encourages cohesion and persistence. We can even acknowledge enthusiastically that Sagafi-nejad is correct that Friends attempted to live their principles if we can also accept that their principles were not exactly what modern Friends now espouse. Is it so bad that, at critical junctures, Quakers have imposed uniformity on one another? Perhaps a little structure and “eldering” is occasionally necessary and helpful. Early modern Friends certainly thought so. Is it terrible that Friends have struggled to be consistent and unified in their Peace Testimony? Perhaps their inconsistency is a sign of the openness and doctrinal flexibility that has allowed them to survive. Also, can anyone really blame early Friends for using all means--even less-than-honorable ones--to manipulate the British legal system, when their lives and fortunes were at stake? Even so, we can still say that they achieved their aims without violence--a spectacular achievement in an age of violent revolution by people who, in comparison with Quakers, only imagined themselves oppressed. The larger point is that throughout history Quakers have struggled to live their faith in the way that Quakers still struggle today. And, like today, they were not always successful. Might we then have something to learn from early Friends’ perceived shortcomings and failures, both collective and individual? Rather than weakening Sagafi-nejad’s case, perhaps such uncomfortable realities actually lend support to her argument that power--legal, financial, or political--corrupts even the most conscientious among us, and that those concerned to uphold testimonies of simplicity and truth must be especially vigilant.
As Sagafi-nejad’s second section reveals, we have much to learn from Quaker activities in the twentieth century. One myth that her work counters is that of Quaker quietism. “Unlike some pacifist groups,” she explains, “Quakers chose not to withdraw from the world but to struggle with their religious principles within it” (p. 73). Indeed, their tireless advocacy for human and civil rights is inspirational. She discusses the Quakers’ evolution from avoiding court proceedings to recognizing that “for issues of broad public significance … public courts of law are the appropriate forum” (p. 118). They went to law as “divine lobbyists” for those who have the least voice in our society--the poor, immigrants, pacifists, minorities--and “spoke truth to power” on their behalf (p. 69). They also formed many organizations to promote their principles, including the American Friends Service Committee, the Friends Committee on National Legislation, the Quaker United Nations Office, and the Friends World Committee for Consultation. Their goals are consistent with those of the earlier Friends--to encourage peaceful solutions to disputes and to ensure basic rights and liberties for all.
A significant aspect of Sagafi-nejad’s book is its presentation of the results of a survey (reproduced in an appendix) of one hundred Quaker lawyers about how they negotiate the legal profession as Quakers. It reveals men and women who went into the legal profession largely to help the less fortunate, yet who find it difficult to maintain their spiritual principles in the face of a system apparently premised on aggression and deception. It seems as though contemporary Quaker lawyers, although they still struggle to balance faith and legal practice, might be more successful at adhering to their spiritual principles than earlier Friends were. Part of their success may come from choosing their cases carefully and avoiding those that might cause conflict with their faith.
Sagafi-nejad is aware of the obstacles to using ADR, including the “adversarial model” that dominates U.S. legal education and practice; she notes the American “cultural tendency toward competition rather than cooperation” (p. 188), as well as “the waning of traditional mediating entities such as the church, family, and community” (p. 193). Her final chapter presents ideas and suggestions for cultivating ADR, beginning within Quaker meetings and emanating outward into society at large. She argues persuasively that Quaker methods encourage disputants to “speak directly and truthfully to one another” (p. 174), thus obviating the need for courtroom battles that often damage the winners as well as the losers.
This book is a valuable testimonial to the legal work of Quakers. It might be used as an excellent starting point, but not an end point, for understanding Quaker principles and practice. Sagafi-nejad is not looking for the last word--rather, she hopes for public discourse. Law schools, and even divinity schools, where professional students seek to balance conscience with action, could use her work to good effect. In the classroom, it would be best paired with works confronting the complexities of Quaker history, theology, and legal theory. Also, because her discussion of ADR does not include efforts of the last decade, law professors might select companion works bringing the topic up to date. I imagine that practicing lawyers who question the ethics of their profession and who read Sagafi-nejad’s book will be inspired to change the odds in favor of doing good.
. Herman Wellenreuther, “The Political Dilemma of the Quakers in Pennsylvania, 1681-1748,” Pennsylvania Magazine of History and Biography 94 (1970): 135-172.
. Craig W. Horle, The Quakers and the English Legal System, 1600-1688 (Philadelphia: University of Pennsylvania Press, 1988), 215, 188, 207, 223.
. This exchange is in the R. R. Logan Collection, #383, Historical Society of Pennsylvania, Philadelphia, PA.
. Meredith Baldwin Weddle, Walking in the Way of Peace: Quaker Pacifism in the Seventeenth Century (New York: Oxford University Press, 2001); Jack Marietta and G. S. Rowe, Troubled Experiment: Crime and Justice in Pennsylvania, 1682-1800 (Philadelphia: University of Pennsylvania Press, 2006); John Smolenski, Friends and Strangers: The Making of a Creole Culture in Colonial Pennsylvania (Philadelphia: University of Pennsylvania Press, 2010); Jane E. Calvert, Quaker Constitutionalism and the Political Thought of John Dickinson (New York: Cambridge University Press, 2009); Jackie Leach Scully and Pink Dandelion, Good and Evil: Quaker Perspectives (Hampshire, UK: Ashgate, 2007).
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Jane E. Calvert. Review of Sagafi-nejad, Nancy Black, Friends at the Bar: A Quaker View of Law, Conflict Resolution, and Legal Reform.
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