The Yale Law Journal

February 2016

Robert Burt: Repetition and Insistence

author. Professor of Law, Universidad Nacional de Buenos Aires; Global Professor of Law, NYU Law in Buenos Aires, NYU School of Law.

“What’s in a name?” Juliet wished there was nothing in it, but there was Romeo, a Montague. What’s in Bo’s name? It seems that here also there is nothing in it, but there is: a strange sound, a faint echo, a repetition. Robert Amsterdam Burt, Robert Burt, Bert Burt!

I have always wondered about that sound. It may have been my foreign ear that picked up something nobody ever realized was there. So I cautiously asked Linda about it a few days ago and she answered with this story, in fact, with Bo’s story about his own name—because, as she correctly points out, with Bo there is always a story.

It goes like this: Bo’s mother liked the looks of an actor named Barry and decided to give her son his name, but as soon as she saw the looks of her son she decided otherwise. Not Barry anymore, but Robert. And she added her family name, Amsterdam, in between her son’s and her husband’s names, thus hiding the repetition: Bert Burt. This echo in his name sounds like someone calling him insistently, someone eager to get his attention, to engage or to reengage in conversation with Bo. One has to wonder how such a calling inscribed in your name would affect your life.

Although Bo was my J.S.D. supervisor, I was never his student–never a formal one, anyway. I only sat for a couple of months in his famous Book of Job course. That transforming experience is still with me, and I am indebted to Bo and Jim1 for it. Now we have a book, In the Whirlwind, where many of those wonderful insights we learned about in the classroom are displayed for everyone to enjoy in print.2

They are there to be found and especially one: the rhythmic succession of fateful interactions between God and Humanity. God’s longing for companionship, Humanity’s attempt at autonomy. God’s anger, Humanity’s expulsion. God’s arbitrariness, Humanity’s anger. God’s punishment, Humanity’s guilt. God’s forgiveness, Humanity’s doubts. God’s promises, Humanity’s hope. And so on. Bo underlined this ongoing cycle, not the fact that it was a cycle, but the fact that it kept going on and on.

Whenever the cycle seems to have stopped, the narrative of the Bible uses repetition to start the process again. In the beginning, for example, instead of one, final attempt at creation, we have two, tentative, unstable Geneses. When the first did not work out, God did not keep resting, but insisted and started again. And then he could not resume resting; he had to deal with Humanity, and the task was not easy. Humanity disobeyed; God banished us and made us mortals. God preferred Abel; Cain killed him. God banished Cain; God regrets that Cain’s descendants’ evil “was great on the earth and . . . every scheme of [their] heart’s devising was only perpetually evil,” and so eventually He flooded the earth.

Thus far the narrative shows the failure of a scheme of command and punishment to achieve the results God is seeking to accomplish: to walk again in the garden with us. But the threat of punishment did not work and obedience to avoid punishment was obedience for the wrong reason. Thus the rainbow, that ominous “mnemonic tool” as Bo calls it, assured Noah that destruction was, from then on, out of the question.

What next? With Abraham we witness the arrival of the basic twin institutions that deal with the uncertainties of human action. We cannot undo past wrongs and we cannot secure future behavior; thus God shows us in Abraham a possibility forward: to forgive and to promise. God forgives Abraham for past wrongdoings and promises to make of his descendants a “great people.” Will Abraham walk again with God? He did, at least for a short while, when he bargained for the innocent in Sodom and Gomorrah. But will God keep His promises? Abraham did not know, and became mistrustful. He thought his sons had died, and Isaac, his only one remaining, was about to be killed by Abraham’s own hand to comply with God’s command of sacrifice.

And this is when God calls out for Abraham to stay his hand, naming him twice. “Abraham, Abraham!” One time is not enough any more. A mistrustful Abraham needs to be reminded that God is talking to him, is delivering His promise to make a great nation of Abraham’s descendants. His mistrust may be understandable because although God had spared his other three sons, Abraham did not know about it. God complied, and expected Abraham to believe in Him, no matter what his senses might tell him. But Abraham was too human, and saw what God was capable of, and then they did not talk to each other again. There will be no more walking in the garden for them.

Abraham’s grandson Jacob would not walk but bargain and even wrestle with God. The mistrust will stay among Abraham’s descendants. Jacob loses his first wife, whom he loved, and his favorite son, Joseph. Therefore, when he is on his way to Egypt God has to repeat his name “Jacob, Jacob!” and then reintroduce Himself, explaining who He is twice: “I am the god, God of your father,” as if suspecting Jacob had forgotten all about Him.

Then silence and enslavement befall the Jews, as it was promised, for four hundred years. This long period comes to an end when a name is called twice from a burning bush: “Moses, Moses!” And Moses uses the traditional reply, already used by both Abraham and Jacob: “Here I am.” Thus starts one of the most, if not the most, memorable relationships in the Bible, a relationship that will echo in the Book of Job and in the Christian Bible’s story of Jesus. God finds in Moses an equal, a fellow in conversation, someone who can walk again with God. But Moses insists in securing God’s part of the bargain. He wants not only to establish an intimate relationship with God but also to assume the leadership of his people. A jealous God does not take this partial loyalty lightly, and Moses dies a wanderer.

With his fascinating reading of the Book of Job and the story of King David, Bo prepares us for Jesus. In Job, Humanity calls this time, trying to bring God to the conversation. And it succeeds. God replies angrily at first, but later He replies somewhat remorsefully in order to create a relationship among us based this time in the willingness to repent for our own, and also to forgive the other’s, wrongdoings. In David, this moment is underlined by his calling twice in grief to his dead son, “Absalom, Absalom!” who had offended David, who is in turn guilty of the death of his first son.

The last repetition is Jesus’ call on the cross: “My God, my God, why hast thou forsaken me?” It is a call and a question. For Bo, it is the question of the Bible. That is, whether we can keep trying to engage in conversation despite our misgivings, our disillusions, our broken promises.

The repetition of names was first an insistence on being heard when trust was compromised, then it became a call for reengagement in the hope of creating a bond among equals, and then an assumption of guilt and a disposition to forgive the guilt in the other. But always it was a call to keep the conversation going.

Likewise in law. Bo also heard a name repeated in the best moment of the United States Supreme Court, the call he heard when the Warren Court repeated twice Brown v. Board of Education. Bo taught all of us, forever, the many ways judges have to keep the democratic deliberation going. But Brown was always in his mind. When the Justices affirmed Brown twice they were calling to the oppressors to hear the call of the oppressed: not only the segregationist states, but also the oppressive majority of whites. And they heard, and they came forward, and they marched, making real one of the most beautiful performatives a leader ever pronounced: “I have a dream.” And then the repeated call in Brown became law, and Bo was there, as were Burke,3 and Owen,4 my beloved professors of this incredible law school working on the Civil Rights Act, and beyond.

Burt, Burt! The call Bo heard in his name insisted that he should keep listening, and talking back. Now every time we say his name it will make us aware of the call and the insistence in it, and it will prompt us to keep asking, and responding, even when hurt, even when betrayed, even in the darkest hours that, as Bo told us, will certainly come. But then again, in those hours, we will be sure that after calling him twice, his works, his classes, and his memory will tirelessly, relentlessly, respond, as he always did, “Here I am.”