Thursday, February 2, 2017
Michael has already quoted a passage from Judge Neil Gorsuch's chapter in the Finnis festschrift (Reason, Morality, and Law (Keown & George, eds. 2013)). Here's another one that caught my attention (419-20):
Not only does Finnis help us to see that the traditional intent-knowledge distinction in law bears analytical power overlooked by its critics. He also helps expose the undergirding normative reasons for the law's traditional cognizance of intention. He reminds us, for example, that some of the law's harshest punishments are often (and have long been) reserved for intentional wrongs precisely because to intend something is to endorse it as a matter of free will--and freely choosing something matters. Our intentional choices reflect and shape our character--who we are and who we wish to be--in a way that unintended or accidental consequences cannot. Our intentional choices define us. They last, remain as part of one's will, one's orientation toward the world. They differ qualitatively from consequences that happen accidentally, unintentionally....
This is a view, of course, that has long and deeply resonated through American and British jurisprudence, and indeed the Western tradition. It is precisely why the law treats the spring gun owner who maims or kills intentionally so differently from the negligent driver whose conduct yields the same result. As Roscoe Pound once put it, our "substantive criminal law is," at least at minimum, "based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong."
And then from Professor Finnis's reflection on Judge Gorsuch's chapter (564-65), which comments interestingly on the tendency of tort law to wipe out the distinction between intention and foreseeability:
The underlying point is that--put at its briefest--what is intended so figures in the acting person's proposal that it is adopted--chosen and made his or her own, as end and/or means--in the adopting of the proposal, whereas the side effects, however foreseeable and foreseen and perhaps very 'directly' caused, are not adopted, but only accepted or permitted.
Wednesday, February 1, 2017
The Lewis and Clark Law Review, with the guidance of Professor Jim Oleske, has put together a very nice symposium on Law and Religion in an Increasingly Polarized America. Very interesting papers by Kathleen Brady, Kent Greenawalt, Jessie Hill, Andy Koppelman, Ron Krotoszynski, Chip Lupu and Bob Tuttle, Jim Oleske, and Robin Wilson.
I've got a piece in there too, Religious Accommodation, Religious Tradition, and Political Polarization, which takes a somewhat critical look at the religious accommodation regime from, as it were, the other side.
Sunday, January 15, 2017
I am just back from a conference at Yale Law School organized jointly by Professors Robin Wilson and Bill Eskridge on "Faith, Sexuality, and the Meaning of Freedom," and I offer here some general thoughts about the presentations and the nature of the conference. While the conference's rules do not permit me to get into specifics about who said what, my overall impression is that it was a gathering of academics, politicians, religious leaders, and practitioners drawn from a comparatively broad spectrum of political, religious, and cultural opinion. Robin and Bill are to be commended, in my view, for that balance--always difficult to achieve to everyone's satisfaction.
One of the conference's launch points was the fairly recent report by the US Commission on Civil Rights entitled, "Peaceful Coexistence: Reconciling Nondiscrimination Principles With Civil Liberties," but which did not contain, in my view, very much sound advice for achieving peaceful coexistence or reconciliation. All of the panels concerned the topic of achieving modus vivendi arrangements for the proper legal accommodation of rights of religious liberty and rights of sexual freedom and equality. This has been a large and important part of Robin's own policy work over the last few years, and the so-called Utah Compromise was studied and considered in this respect.
Two things stood out for me in particular.
First, one of the more interesting debates among the group, and, it seems to me, going forward, is about the baseline question of what constitutes the sort of discrimination that the law ought to proscribe in the first place. Once a particular judgment is found to be proscribable discrimination (I suppose the term is "invidious"), the result is all but foreordained. Some argued that the motivation for a particular discrimination is irrelevant; so long as the effect is adverse action against a person within a designated protected category, that ought to be sufficient. Others returned that this was in effect stacking the deck. The first question must be whether somebody has engaged in invidious discrimination at all, and that this is not a question about motivation but about how we properly describe the discrimination that the person has made. Barronelle Stutzman's case is one example of this sort of debate, and this brief authored by Professor Steve Smith addresses the question. But the larger issue of the baseline affects many sorts of discriminations that people make in other contexts. Suppose, for example, that a hospital refuses to perform a surgery to remove the healthy uterus of a woman who identifies as transgender and desires to become a man. Is that the sort of discrimination on the basis of sexual orientation that the law should condemn? Or is it nothing of the kind--is it simply a judgment that hospitals do not remove healthy uteruses--and certainly nothing like a hospital's refusal to perform heart bypass surgery on a woman who identifies as transgender?
Second, one of the pervasive themes of the conference was the conflict between perfectionist and anti-perfectionist accounts of liberalism, and whether perfectionist liberalism is in its ascendancy at the moment. As is well-known, Robin, in her work with others like Professor Douglas Laycock and some of our own MOJ colleagues, has worked tirelessly to hammer out compromises that reflect a judicious anti-perfectionist liberalism. But my sense, in some ways confirmed by this conference, is that perfectionist accounts of liberalism (indeed, perfectionist accounts of politics in general) cannot really ever be sidelined. My own inclinations have always been rather pessimistic when it comes to true pluralism in a liberal democratic nation, even as I deeply appreciate the work of Robin and others. I believe strongly that the expressive and symbolic power of the law is an extremely important feature of it--what the law says about its people, what its people are proud of it to say, always lurks as a sort of subtext beneath the surface of whatever modus vivendi arrangements we might achieve. It is a mistake to ignore that subtext, as it will otherwise only come frothing and bubbling up at unexpected moments.
My own presentation involved what is seemingly a somewhat esoteric topic--Article XI of the Treaty of Tripoli--which begins with the statement that "[T]he government of the United States of America is not, in any sense, founded on the Christian Religion." Part of my talk involved the history of Article XI (which is fascinating) but part suggested that the fight over American identity that the phrase (and many phrases like it) has come to represent--and the symbolic and expressive force of the law--is both a substantial impediment to anti-perfectionist liberal democratic governance and an inevitable and important feature of any government worth the name. More on this soon, I hope.
Thursday, December 22, 2016
For one reason or another, a number of people in the blogosphere have been writing culture war posts in the last few days. Perhaps it's the end of the year, or the looming political changes, or exam avoidance, or just the holiday cheer. For those who are interested, have a look at Mark Tushnet's recent post, Paul Horwitz's response, and this rather grim comment by R.J. Snell--all of them culture war related.
But the piece I really want to highlight is alluded to in the Snell post--Philip Rieff's "The Newer Noises of War in the Second Culture Camp: Notes on Professor Burt's Legal Fictions," published in 1991 and in response to Robert Burt's then-recent book, "Two Jewish Justices: Outcasts in the Promised Land." I cannot do justice to the entire piece, but here is a fragment that is, in its way, responsive to each of the three posts above:
Let there be fight? And there was. And there is. James Joyce's pun, on the words of Jewish second world creation, Genesis 1:3, is more than mildly amusing; it gives readers the most exact and concise account I know of the sociological form of culture. Culture is the form of fighting before the firing actually begins. Every culture declares peace on its own inevitably political terms. Unless a culture is defeated politically, as the Jewish was from the Roman conquest to the founding of Israel, it will assert itself politically. A living culture, even one that imitates life by politicizing its cultural impoverishment, works for itself. That cultural work is the matter and manner of disarming competing cultures, inside and outside its previously bounded self. In its disarming manner, a culture makes the ultimate political means of enforcement, armed force, unnecessary....
12) Kulturkampf. The German compound word for the disarming force/form of culture has an awkward English equivalent: culture/struggle. As I remarked in the first note, the punning polemical genius of Joyce brought him closer than any sociologist I know to both the formal fighting sense of culture and its superordinate creative sense. It is in that both/and that the historical task of culture is always and everywhere the same: the creation of a world in which its inhabitants may find themselves at home and yet accommodate the stranger without yielding their habitus to him. Here and now, pluralism has its price: a united front of second against third world assaults [for Rieff's discussion of first, second, and third worlds, see earlier in the piece], which are often mounted in the name of pluralism.
13) Origins of kulturkampf. Law is the ultimate weapon, before any turn to harder ware, in a kulturkampf. That word first appeared in common German use in the early 1870's during the struggle of the National Liberal political party to disarm by law the moral/educational authority, and political pulpitry, of a triumphalist Roman Catholic hierarchy, revitalized as it then was by its dogma of papal infallibility in matters of faith and morals. The aim of the National Liberals was to shift the German Catholic imagination away from the church to the state. The Pope responded to newly restrictive laws by forbidding clerical conformity to them. In turn, the state dismissed clerical resisters from their duties and, moreover, suspended their state salaries. Elites of the kulturstaat, both Catholic and Protestant, then learned a fatally rational and enduring lesson: the high price of being other than indifferent to the temptation of opposing the machtstaat.
Tuesday, December 20, 2016
Over at the Law and Religion Forum, my colleague, Mark Movsesian, has an interview with Ashley Berner, professor and deputy director of the Institute for Education Policy at Johns Hopkins School of Education, concerning her new book, Pluralism and American Education: No One Way to School. Here's a bit from the conversation:
L&R Forum: You argue for “educational pluralism,” which you say is a “middle path” between state-sponsored uniformity and a libertarian, privatized model. Could you explain what you mean? How would educational pluralism work in practice?
Berner: Educational pluralism asks us to de-couple funding schools and operating schools. Thus in the Netherlands, only 30% of students attend state-funded, state-operated schools, while the rest attend schools that are funded and regulated by the state but operated by non-state institutions. Educational pluralism also requires regulatory guardrails that apply to all schools, thus ensuring some level of coherence across (for instance) content and assessments and sometimes admissions.
That’s why I think of it as a middle path: education is a public good (hence state-mandated requirements) that may be provided by a variety of civic organizations (religious or otherwise).
L&R Forum: Most Americans think that uniform public education is necessary to promote good citizenship. Yet civic knowledge among public school students is appallingly low. Why the mismatch between theory and practice? What benefits would educational pluralism offer in this respect?
Berner: Citizenship formation includes specific knowledge (How does the government work?), specific skills (How do I write my Congressperson?), attachment and participation (Why is this country/state/city worth participating in?), and tolerance (How can we respectfully disagree?). Cultivating the above requires a robust academic program and the possibility of classroom debate. Yet many of our schools – public and private – undervalue the content and skills required to engage in the democratic process. Do schools insist that all students know the basic tenets of the Constitution? Or understand the separation of powers? Or can name the capital of every state? What about actually learning a foreign language and knowing world geography inside out? Our public schools don’t even come close, and plenty of non-public schools undervalue rigorous content.
A second reason may be that many schools struggle to articulate the why’s for students, a point that James Davison Hunter’s book, The Death of Character (2000) drives home. Citizenship requires duty to something greater than oneself. In schools with strong normative cultures, the “greater than” is simply more readily available than it in a supposedly neutral school. Scott Seider’s Character Compass (2012) takes us inside three Boston charter schools whose core commitments draw upon Aristotelian, Pacific Rim, and performance ethics, each of which shapes their respective traditions and rituals.
Educational pluralism simply foregrounds the role that values and commitments play in school culture. The structure of educational pluralism does not solve the problem of citizenship formation by itself. It does, however, create space for schools that are organized around explicit normative claims. And in general, non-public schools provide richer academic content than do district schools. Put these two factors together, and the odds are that pluralizing the school system will yield better civic outcomes.
Tuesday, December 13, 2016
Here's a fun article on J.S. Bach's magnificent Mass in B minor, one of the magisterial and final pinnacles of his oeuvre, and yet in some ways puzzling. What, after all, was a faithful Lutheran doing setting an entire Roman Catholic Mass--a Missa Tota?
And for performances, stay away from the trendy and the faux HIP (Historically Informed Performances). Someday I will write a rancorous essay entitled, "Historically Informed Performances: The Living (and oh so HIP) Originalism of Classical Music."
Instead savor the magnificently moody and measured performances of Furtwängler and Scherchen. Or, if you can't get ahold of those, this version conducted by Herbert von Karajan will do.
Here is an enjoyable exchange of comments over at our Center site on this post that I wanted to share with readers here, reflecting a range of jurisprudential and musicological views--the excellent Frank Cranmer of Law and Religion UK, my colleague Mark Movsesian, and then a response from me.
On historically-informed performance, I’m afraid we must disagree.
All those incredibly s-l-o-w, turgid performances of Handel and Bach, muddy, Romantic English organs (maybe they built better ones in the States), oversized symphony orchestras producing completely the wrong balance – we’ve been there and I, for one, don’t want to go back.
Originalism makes less sense in music than in law, I’d agree, because law involves power. And sometimes a contemporary take on early music works, like Respighi’s Birds and Ancient Airs and Dances. But as a presumption, I’d go with the clarity of Originalism in music on aesthetic grounds, over gushy late-Romantic reinterpretations. Where’s your sense of tradition?
Frank, a pleasure to see you here. It seems that both you and my comrade in arms are as one on this matter. But he has a very Puritanical streak in matters of art (and food, I should add) that runs deeply against my grain. And I cannot agree that the ascetic and rather precious technicality of HIP performances is really at all close to what Bach intended. So I suppose I regard myself as the true traditionalist. It’s like the difference between originalist theory today and the actual jurisprudence of Joseph Story or John Marshall. Very few real similarities.
Oh well. De gustibus non est disputandum–in law and in art.
Friday, December 2, 2016
Among the many interesting features of church-state political and social relations probed by Anthony Trollope in his novels are the various temptations to which adherents of the several Anglican groupings in mid-19th century England might become prone. The following passage from "Barchester Towers," which tells of the early scholarly and ecclesiastical career of one Reverend Francis Arabin (now rector of a small parish called St. Ewald's), describes very effectively one of the chief temptations for High Churchmen...eventual collapse into Roman Catholicism. Note, in particular, Trollope's reference to Sir John Henry Newman (and his favorable comments about schismatics!).
And what of Low Church temptations? In what might those consist? That is for another post. Here is Trollope on the Rev. Arabin (from Chapter XX):
He had been a religious lad before he left school. That is, he had addicted himself to a party in religion, and having done so had received that benefit which most men do who become partisans in such a cause. We are much too apt to look at schism in our church as an unmitigated evil. Moderate schism, if there may be such a thing, at any rate calls attention to subject, draws in supporters who would otherwise have been inattentive to the matter, and teaches men to think upon religion. How great an amount of good of this description has followed that movement in the Church of England which commenced with the publication of Froude's Remains!
As a young boy Arabin took up the cudgels on the side of the Tractarians, and at Oxford he sat for a while at the feet of the great Newman. To this cause he lent all his faculties. For it he concocted verses, for it he made speeches, for it he scintillated the brightest sparks of his quiet wit. For it he ate and drank and dressed, and had his being. In due process of time he took his degree, and wrote himself B.A., but he did not do so with any remarkable amount of academical éclat. He had occupied himself too much with high church matters, and the polemics, politics, and outward demonstrations usually concurrent with high churchmanship, to devote himself with sufficient vigour to the acquisition of a double first. He was not a double first, nor even a first class man; but he revenged himself on the university by putting firsts and double firsts out of fashion for the year, and laughing down a species of pedantry which at the age of twenty-three leaves no room in a man's mind for graver subjects than conic sections and Greek accents.
Greek accents, however, and conic sections were esteemed necessaries at Balliol, and there was no admittance there for Mr. Arabin within the lists of its fellows. Lazarus, however, the richest and most comfortable abode of Oxford dons, opened its bosom to the young champion of a church militant. Mr. Arabin was ordained, and became a fellow soon after taking his degree, and shortly after that was chosen professor of poetry.
And now came the moment of his great danger. After many mental struggles, and an agony of doubt which may well be surmised, the great prophet of the Tractarians confessed himself a Roman Catholic. Mr. Newman left the Church of England, and with him carried many a waverer. He did not carry off Mr. Arabin, but the escape which that gentleman had was a very narrow one. He left Oxford for a while that he might meditate in complete peace on the step which appeared to him to be all but unavoidable, and shut himself up in a little village on the sea-shore of one of our remotest counties, that he might learn by communing with his own soul whether or no he could with a safe conscience remain within the pale of his mother church.
Things would have gone badly with him there had he been left entirely to himself. Every thing was against him: all his worldly interests required him to remain a Protestant; and he looked on his worldly interests as a legion of foes, to get the better of whom was a point of extremest honour. In his then state of ecstatic agony such a conquest would have cost him little; he could easily have thrown away all his livelihood; but it cost him much to get over the idea that by choosing the Church of England he should be open in his own mind to the charge that he had been led to such a choice by unworthy motives. Then his heart was against him: he loved with a strong and eager love the man who had hitherto been his guide, and yearned to follow his footsteps. His tastes were against him: the ceremonies and pomps of the Church of Rome, their august feasts and solemn fasts, invited his imagination and pleased his eye. His flesh was against him: how great an aid would it be to a poor, weak, wavering man to be constrained to high moral duties, self-denial, obedience, and chastity by laws which were certain in their enactments, and not to be broken without loud, palpable, unmistakable sin! Then his faith was against him: he required to believe so much; panted so eagerly to give signs of his belief; deemed it so insufficient to wash himself simply in the waters of Jordan; that some great deed, such as that of forsaking everything for a true church, had for him allurements almost past withstanding.
Wednesday, November 23, 2016
I have said before that if you are interested in law and religion, you must read Anthony Trollope. I can't think of many authors who are more intimately concerned with the quotidian working out of church-state arrangements. As Hawthorne once put it, "Trollope's novels are solid, substantial, written on the strength of beef and through the inspiration of ale and just as real as if some giant had hewn a great lump out of the earth and put it under a glass case, with all its inhabitants going about their daily business and not suspecting they were being made a show of."
Trollope's Barsetshire Novels in particular are concerned with political and cultural change, or "evolution," within the Anglican Church in English nineteenth century life. Here is a wonderful passage from "Barchester Towers" in which a "new man" representative of the progressively liberalizing episcopacy (Mr. Slope) informs an "old man" (Mr. Harding) about the changes coming to the Church and to English life more broadly:
"You must be aware, Mr. Harding, that things are a good deal changed in Barchester," said Mr. Slope.
Mr. Harding said that he was aware of it. "And not only in Barchester, Mr. Harding, but in the world at large. It is not only in Barchester that a new man is carrying out new measures and casting away the useless rubbish of past centuries. The same thing is going on throughout the country. Work is now required from every man who receives wages; and they that have to superintend the doing of work, and the paying of wages, are bound to see that this rule is carried out. New men, Mr. Harding, are now needed, and are now forthcoming in the church, as in other professions."
All this was wormwood to our old friend [Mr. Harding]. He had never rated very high his own abilities or activity; but all the feelings of his heart were with the old clergy, and any antipathies of which his heart was susceptible, were directed against those new, busy, uncharitable, self-lauding men, of which Mr. Slope was so good an example....
Mr. Harding was not a happy man as he walked down the palace pathway, and stepped out into the close. His preferment and pleasant house were a second time gone from him; but that he could put up with. He had been schooled and insulted by a man young enough to be his son; but that he could put up with. He could even draw from the very injuries, which had been inflicted on him, some of that consolation, which we may believe martyrs often receive from the injustice of their own sufferings, and which is generally proportioned in its strength to the extent of cruelty with which martyrs are treated....But the venom of [Mr. Slope's] harangue had worked into his blood.
"New men are carrying out new measures, and are carting away the useless rubbish of past centuries!" What cruel words these had been; and how often are they now used with the heartless cruelty of a Slope! A man is sufficiently condemned if it can only be shown that either in politics or religion he does not belong to some new school established within the last score of years. He may then regard himself as rubbish and expect to be carted away. A man is nothing now unless he has within himself a full appreciation of the new era; an era in which it would seem that neither honesty nor truth is very desirable, but in which success is the only touchstone of merit. We must laugh at every thing that is established. Let the joke be ever so bad, ever so untrue to the real principles of joking; nevertheless we must laugh--or else beware the cart. We must talk, think, and live up to the spirit of the times, and write up to it too, if that cacoethes be upon us, or else we are naught. New men and new measures, long credit and few scruples, great success or wonderful ruin, such are now the tastes of Englishmen who know how to live.
Tuesday, November 15, 2016
Liberal Anglicanism Emerges: Religion, Politics, and the Academy (Trollope's View in "Barchester Towers")
Here's an interesting description by the great novelist, Anthony Trollope, of the changing profile of the Anglican churchman (by name, in this case, Dr. Proudie) in chapter III of his wonderful novel, "Barchester Towers," the second of The Barsetshire Novels--and in specific the causes and effects of Anglican liberalization in early nineteenth-century England (when parallel, though not of course identical, liberalizations were occurring to Anglicanism in the United States--see, e.g., Virginia). I found especially interesting the admixture of religion, politics, and academics in the creation of this liberal Anglicanism:
Some few years since, even within the memory of many who are not yet willing to call themselves old, a liberal clergyman was a person not frequently to be met. Sydney Smith was such, and was looked on as little better than an infidel; a few others also might be named, but they were 'rarae aves,' and were regarded with doubt and distrust by their brethren. No man was so surely a tory as a country rector--nowhere were the powers that be so cherished as at Oxford.
When, however, Dr. Watley [MOD: the Irish social reformer] was made an archbishop, and Dr. Hampden some years after regius professor [MOD: Renn Hampden, who famously squabbled with John Henry Newman, and eventually became the Regius Professor of Divinity at Oxford], many wise divines saw that a change was taking place in men's minds, and that more liberal ideas would henceforward be suitable to the priests as well as to the laity. Clergymen would be heard of who ceased to anathematise papists on the one hand, or vilify dissenters on the other. It appeared clear that high church principles, as they were called, were no longer to be surest claims to promotion with at any rate one section of statesmen, and Dr. Proudie was one among those who early in life adapted himself to the views held by the whigs on most theological and religious subjects. He bore with the idolatry of Rome, tolerated even the infidelity of Socinianism, and was hand and glove with the Presbyterian synods of Scotland and Ulster.
Such a man at such time was found to be useful, and Dr. Proudie's name began to appear in the newspapers. He was made one of a commission who went over to Ireland to arrange matters preparative to the working of the national board; he became honorary secretary to another commission nominated to inquire into the revenues of cathedral chapters; and had something to do with both the regium donum and the Maynooth grant.
It must not on this account be taken as proved that Dr. Proudie was a man of great mental powers, or even of much capacity for business, for such qualities had not been required in him. In the arrangement of those church reforms with which he was connected, the ideas and original conception of the work to be done were generally furnished by the liberal statesmen of the day, and the labor of the details was borne by officials of lower rank. It was, however, thought expedient that the name of some clergyman should appear in such matters, and as Dr. Proudie had become known as a tolerating divine, great use of this sort was made of his name. If he did not do much active good, he never did any harm; he was amenable to those who were really in authority, and at the sittings of the various boards to which he belonged maintained a kind of dignity which had its value.
Tuesday, November 8, 2016
According to Sallust, on this date in 63 BC, Cicero delivered his first oration to the Senate against Lucius Sergius Catilina (Catiline), the corrupt Roman politician who was up for election and who, in Cicero's view, was in large measure responsible for the degradation and ultimate destruction of the republic.
...iam intelleges multo me vigilare acrius ad salutem quam te ad perniciem rei publicae