Rembrandt painted The Return of the Prodigal Son around 1668, in the last years of his life, and it hangs now in the Hermitage. The half of it that gets reproduced shows the father—nearly blind, in Nouwen’s description (Nouwen, 1992, p. 21)—bending over the kneeling son with his hands on the boy’s shoulders. The full canvas includes a second son. He stands off to the right, at a distance from the embrace, and Henri Nouwen, who spent hours in front of the painting and then wrote a book about it, recorded the contrast in detail. The father bends, while “the elder son stands stiffly erect, a posture accentuated by the long staff reaching from his hand to the floor.” The father’s hands are open in blessing, while the son’s “are clasped together and held close to his chest.” There is light on both faces, “but…the light on the face of the elder son is cold and constricted” (68–69).
I sit on the Iowa Court of Appeals, and I have found the figure on the right harder to look away from than I would like.
The Complaint
The elder son gets one speech in Luke: “All these years I have slaved for you and never once disobeyed any orders of yours, yet you never offered me so much as a kid for me to celebrate with my friends” (Lk. 15:29). On its face it is a sound claim. He alleges a course of performance over many years and his own compliance without exception, and he identifies a benefit conferred on the party who breached and withheld from the party who performed. He misstates nothing. What he asks for is proportion between conduct and consequence, the ordinary business of a court.
What makes the parable difficult is that it is not the story of a mistaken litigant. The elder son is not confused about the facts, and he is not demanding more than his conduct would ordinarily earn. In any accounting I have been trained to perform, he prevails.
But unlike Judge Sandy, the father does not answer it: the reproaches “are not met with words of judgment,” there is “no recrimination or accusation,” and the father “does not defend himself or even comment on the elder son’s behavior” (80). The father does not fight against the claim—he declines to adjudicate it, and says: “My son, you are with me always, and all I have is yours.” Nouwen notes that Luke’s word in this verse is teknon, nearer to “child” than to “son” (80).
What replaces the accounting is what Nouwen calls “non-comparing love,” and he is candid that he has “little experience” of it and does “not know the healing power of such a love” (81). As a judge, neither do I. As a father of four children, I know all too well the “non-comparing love” Nouwen speaks of.
The Disposition
Nouwen is not proposing a jurisprudence. Courts are obliged to compare; that obligation is most of what we mean by equal treatment, and a judge who declined to compare would be derelict. But the parable is not about the administration of justice, and the father is no magistrate. Rather, Nouwen’s subject is about the disposition of the person who judges.
He arrived at it about himself, and not on his own. He had spent a long time identifying with the younger son—the exhausted traveler who wanted to be embraced—until a friend, Bart Gavigan, listened to him describe it and said: “I wonder if you are not more like the elder son” (20). Nouwen then took an inventory and did not spare himself.
He was the eldest child. He had decided at six that he would be a priest and never changed his mind. He was born, baptized, confirmed, and ordained in the same church, and had been obedient in turn to his parents, his teachers, his bishops, and his God. “I was the elder son for sure,” he concluded, “but just as lost as his younger brother, even though I had stayed ‘home’ all my life” (21).
The reason this form of lostness is hard to identify, he argues, is that it is “so closely wedded to the desire to be good and virtuous” that it cannot be separated out and inspected (70). Nouwen states the general case in terms that take in a good deal more than himself: “There is so much resentment among the ‘just’ and the ‘righteous.’ … There is so much frozen anger among the people who are so concerned about avoiding ‘sin’” (71).
Resentment, Nouwen writes, is “far more pernicious: something that has attached itself to the underside of my virtue. Isn’t it good to be obedient, dutiful, law-abiding, hardworking, and self-sacrificing? And still it seems that my resentments and complaints are mysteriously tied to such praiseworthy attitudes” (75). He then asks the question the observation raises and declines to answer it: “How to weed out these resentments without uprooting the virtues as well?” (76)
I will not speak for anyone else on the bench. I will say only that the habits which make a person competent in this work—attention to what is owed, resistance to sentiment, memory of a criminal history—are not far from what Nouwen is describing, and that he is right about how difficult the resemblance is to see from the inside. He also thought the difficulty asymmetrical. Both sons in the parable are lost, but “the hardest conversion to go through is the conversion of the one who stayed home” (66, 69).
What the Record Does Not Show
A great deal of what courts do is discretionary, and discretion is exercised in a space where the interior condition of the judge operates without appearing anywhere in the record.
I am in a position to say something about that record, since reading it is what I do. When we review a discretionary ruling, we have the reasons the judge gave, and those reasons are ordinarily sound (and grounded in statute). What the record cannot show, however, is the interior disposition from which they were given. Two judges can reach opposite conclusions on the same facts, each supported by reasoning that will survive review, and nothing on the record will disclose which of them was, that day, standing outside the feast. I review such rulings deferentially, and by design. Deference assumes that the judge closest to the parties perceived something the record cannot carry, which is ordinarily true and is why the rule is a sound one. But it also means that the thing we would most want to know about a discretionary ruling is impossible to see.
There is also the question of what resentment does to the room. Nouwen’s claim is that it converts every relationship into a matter of rank. Once a person is “outside of the light,” the only postures left to him are these: “To be afraid or to show disdain, to suffer submission or to enforce control, to be an oppressor or to be a victim” (82). Nothing remains in which two people simply regard one another. A courtroom is an unusually easy place for that condition to go unnoticed, because a courtroom is already arranged as a hierarchy. The judge sits above the parties. Everyone rises when he enters. Deference runs in one direction. Resentment in that setting does not present as resentment; it presents as procedure. And the parties are better readers of it than we are—they have to be. A litigant can prevail on the merits and still leave understanding that he was tolerated rather than heard.
Two Kinds of Standing
Nouwen’s remedy is not a program, and he concedes he cannot supply it himself: “I am totally unable to root out my resentments. They are so deeply anchored in the soil of my inner self that pulling them out seems like self-destruction” (76). What he offers instead is a distinction. There is the authority of power, and there is what he calls the authority of compassion, and he asks whether he is “doomed to remain so caught up in my own need to find a place in my world that I end up ever and again using the authority of power instead of the authority of compassion” (128).
The first arrives by commission and functions regardless of the person holding it—a judge. The second cannot be conferred by anyone. He thought it was reached by three roads—grief, forgiveness, and generosity—and about the first he said: “There is no compassion without many tears” (128). That is a claim one can test. A judge who is no longer grieved by what comes before him has arrived at the far-right edge of Rembrandt’s canvas: legally correct, widely respected, and outside the feast.
Frustratingly, the parable does not resolve. Luke gives the father’s answer and stops; we are never told whether the elder son went in. Rembrandt does not resolve it either. “Rembrandt does not reveal whether he sees the light,” wrote the art historian whose study of the picture shaped Nouwen’s reading, and so “the interpretation of the elder brother’s reaction is left up to the viewer” (77–78). Nouwen left his own position in the same condition. His summary of the book, written in its introduction, is a sentence in three tenses: “I am the younger son; I am the elder son; and I am on my way to becoming the father” (23). Not “I have become.” He published that in 1992 and died four years later, at the age of sixty-four.
Every matter that reaches my court concludes. A case comes up unresolved and goes down under an opinion, and whatever else is true of it, it is over. This one does not conclude, and the party whose conduct remains at issue is the one holding the book. No doubt, I am a judge vested with the authority of power. That is by commission. And I am the younger son. I am the elder son. The unresolved question is whether, like Nouwen, I am on my way to becoming the father—the hardest conversion.
Image from Wikimedia Commons
