[This article written in the mid-1950s by Guy F. Hershberger should be read in conjunction with the 1989 article on Lawsuits below for a current Mennonite perspective on the law.]
Litigation is a legal process by which claims are brought before a court and a decision is rendered by a judge with or without the aid of a jury. Although there are variations in Mennonite faith and practice with respect to litigation, in a general way it may be said that the historic Mennonite view on this question, as well as the current attitude of those Mennonites holding most consistently to the principle of nonresistance, is substantially as follows: (1) Members of the Christian brotherhood may not settle differences among themselves by means of litigation in the civil courts. (2) It is inconsistent for the Christian to be the aggressive party in a suit at law against another person, even when legal justice is on his side. (3) When a Christian is summoned to court, charged with violation of the law, he may employ the services of an attorney in his behalf. (4) In case a civil suit is brought against a Christian it is not necessarily inconsistent with the principle of nonresistance for him to defend his case before the court by legal means, although every effort should be made in the spirit of love to make settlement out of court even in case of an unjust plaintiff. (5) Purely routine actions, so-called friendly suits, are allowable.
The basic principle at stake in this position is that of Christian love. The Christian is called to a ministry of reconciliation, entering into the work of Christ, reconciling men unto God. Suits at law directed by one individual against the person of another involve an "offence," condemned in Matthew 18:6 because it creates a barrier between the offender and the offended. If the latter is a fellow Christian, the result is a schism in the body of Christ. If he is a non-Christian, the Christian who brings suit renounces his ministry of reconciliation to those outside the body of Christ. 1 Corinthians 6:1-7 requires Christians to settle disputes among themselves without resorting to courts at law, whereas the spirit and teaching of the entire New Testament is that the Christian should be ready to suffer wrong rather than to offend another by taking vengeful or punitive action against him.
In case of action brought against the Christian by the state for alleged violation of the law, the principles outlined above would indicate that the accused may not use legal procedures for the denial of an act which has been committed. Legal counsel may be employed, however, to establish the truth in the case; to plead one's guilt and to pray for clemency when this is in order; to establish one's innocence when such is the case; and to claim the supremacy of God's higher law when the latter is in conflict with the laws, of men. In case of such defense before the court, however, the procedure must be with the spirit of love and reconciliation, the objective being not personal interest but rather obedience to the will of God, as in the case of Paul and others of the apostles before the authorities who were defending not primarily themselves but the cause of Christian liberty. The same spirit of reconciliation is even more important in case of defense in a civil suit where action is brought by another individual, for here personal relationships are involved and offense must be avoided lest the Christian's ministry of reconciliation be made of none effect. Here the minimum requirement would be that the Christian make every possible effort to settle the case in a peaceable manner outside of court.
It is also clear that in the complex economy of the 20th century more details of the life of the individual Christian are affected by the state and the law than was formerly the case. This has had the effect of greatly enlarging the above-mentioned nonlitigious category of routine legal procedures, including so-called friendly suits. This may include such varied procedures as the clearance of title to real estate, the settlement of estates, the determination of tax responsibilities, the settlement of claims before various civil boards such as workmen's compensation boards, rent control boards, and public utility commissions, appeals in the draft procedures of the Selective Service System, land damage cases involving the right of eminent domain, perhaps even the claims of one corporation against another, and many other types of cases. While these need not involve any conflict of personal relationships there may well be cases where there is such involvement. A recent conference sponsored by the Peace Problems Committee of the Mennonite Church (MC) for the study of this question recognized this fact and registered its concern that the brotherhood exercise great care to employ only such legal procedures as in any given case will harmonize with the principles of love, nonresistance, and reconciliation outlined above, and which above all do not involve the element of personal offense. The conference also called attention to such procedures as the making and processing of wills, mechanics' liens, mortgages, and many others which may or may not be used in harmony with this spirit, depending on the attitudes and the purposes of those who employ them.
Because of their attitude on litigation Mennonites historically have seldom entered the legal profession, except in those groups which have changed their position or who no longer hold to the principle of nonresistance. Some of Holland's leading attorneys, for example, have been Mennonites, and the current president of the A.D.S. (Dutch General Conference) is a lawyer. There have been a number of lawyers within the membership of the General Conference Mennonite Church in America and there is one lawyer who is a member of the Mennonite Church (MC) and an active layman in the Lancaster Conference. He as well as certain General Conference Mennonite lawyers serve primarily as counsel in nonlitigious matters as the term has here been defined, having a concern to assist their clients in an understanding of the law as it affects their affairs, as well as to direct their legal and business relationships along lines which harmonize with the way of love, nonresistance, and reconciliation.
A notable case of litigation among the American Mennonites in violation of their own principles, and recognized as such by the court, occurred following the Oberholtzer schism when the Boyertown Mennonite meeting was divided, one group following Oberholtzer and the other remaining in the Franconia Conference. For some years both groups used the same meetinghouse, but when the trustees, who were of the Franconia group, in erecting a new meetinghouse specified certain conditions for its use by the Oberholtzer group, the latter filed suit claiming rights in common with the Franconia group. When their petition was denied (1879) they appealed the case and won a decision in their favor (1882). The Franconia trustees now appealed this decision, whereupon the court reversed itself (1883). The Boyertown groups now built two meetinghouses and the Franconia trustees were disciplined by their Conference for having appealed the case, the appeal being interpreted as an aggressive action, whereas no discipline was administered for having appeared as defendants in the first instance.
The court's clear understanding of the Mennonite position on litigation, and of its violation in the Boyertown case, is seen in the judge's statement following his decision in favor of the plaintiff in 1882. The statement follows: "It is to be regretted that the members of this religious organization should have such differences which they cannot harmonize. The Mennonite Church is world-wide renowned for peace, brotherly love, and good will to all, and for the amicable settlement of all their difficulties among themselves in a Christian spirit. The court is the last place to which they should resort, and indeed never should until all other amicable modes at an honest method of adjustment have failed. Once in court, immaterial how it may terminate, feelings of discord are often engendered, that many years will not allay. Neighbors who before were friends are parted forever." (See Samuel H. Landis, et al. vs. Henry S. Borneman, et al., Supreme Court of Pennsylvania, Eastern District, January Term, 1883, Paper Book of Appellants, Reading, 1883, XLVIII, XLIX.)
In the Mennonite Church (MC) and more conservative groups, members are disciplined for violation of the above standards, and may even be excommunicated. In the remaining groups in America lawsuits are forbidden, except in the G.C.M. group, which discourages them; but discipline is not always strictly applied. In the more conservative congregations in Germany, as well as in France and Switzerland, tradition has remained very strong against members being the aggressive parties in lawsuits. In the remainder of European Mennonitism the tradition has long since ceased to function.
The traditional position of Mennonites has been to avoid lawsuits almost at any cost. This position was in part based on Biblical interpretation (particularly on the doctrine of nonresistance), but also resulted from the cultural milieu in which Mennonites found themselves. As long as Mennonites lived in insular rural communities they could settle disputes among themselves and avoid contact with the law except that necessary to carry out transfers of property.
Though many Mennonites continue to hold this view of the law, the changed environment in which North American Mennonites find themselves in the late 20th century has made it increasingly difficult for them to avoid contact with the law. Mennonites have continued to move from agriculture into businesses and the professions; from rural communities to urban and suburban settings; from dealing primarily among themselves to dealing primarily with non-Mennonites. Mennonites now commonly purchase automobile or health insurance policies that include subrogation clauses requiring the insured to authorize the insurance company to sue if liability disputes arise. Mennonites now frequently direct institutions and corporations that own property, and thus must think of the institutional as well as the personal consequences of a "no litigation" policy.
This has led to a continual reexamination of the Mennonite theological position on litigation. Mennonite Auto Aid sponsored a study of the problem from 1959 until 1965, including a 1961 conference, "Consultation on problems of litigation facing Mennonites today." The Peace Problems Committee reported to the Mennonite Church General Conference (MC) on the topic in 1961 and again in 1963. In 1976 a task force was appointed by the Mennonite Church (MC) General Board which reported to the church's general assembly in 1977 and 1979. Finally the 1981 Mennonite Church General Assembly adopted a statement on The use of the law, which is the latest theological articulation on this subject.
The statement continues to urge Mennonites to go the second mile in avoiding litigation and to settle disputes quickly and amicably. It recognizes, however, that legal problems can be quite complex, and that litigation may sometimes be appropriate for Christians. It affirms the positive role that law plays in society and the role Christians can play in using the law to bring about justice. It urges Christians to seek out alternatives to litigation, such as mediation and conciliation (reconciliation) services, which can resolve conflict with less animosity than adversarial litigation. It finally urges that the discernment of the church be brought to bear on determining in what situations litigation may be appropriate.
Mennonites are increasingly involved in the practice of law. Whereas the Mennonite Encyclopedia could note in 1957 (Lawsuits (1956)) that there was only one lawyer in the Mennonite Church (MC), compared to a larger number in the General Conference Mennonite Church, in 1986 there were dozens of lawyers in the Mennonite Church (MC). Mennonite lawyers met for a symposium in 1980 and many were present the following year when the Associated Mennonite Biblical Seminaries held a conference on law and the Bible. Some Mennonite lawyers have been active in legal aid programs assisting the poor, others have been active with mediation and victim offender programs, such as the Mennonite Conciliation Service, seeking to offer an alternative to litigation.
Adapted by permission of Herald Press, Scottdale, Pennsylvania, and Waterloo, Ontario, from Mennonite Encyclopedia, Vol. 3, pp. 375-377, v. 5, pp. 512-513. All rights reserved. For information on ordering the encyclopedia visit the Herald Press website.
Written 1956, 1989 by GFH, TSJ
Page created 1999 by SJS