Friday, July 14, 2017
Today is Bastille Day, and it would not be right to let it go unhonored here at Mirror of Justice. Here is my contribution:
something from that titan of France now well ensconced in the Pantheon, Victor Hugo. If you do not know Les Miserables (the novel, of course, not the musical), you must give it a try. It's a rare and true pleasure to read.
It may perhaps come as a surprise that the first book of Les Miserables, "A Just Man," is almost entirely devoted to describing a bishop--Bishop Bienvenu Myriel. It may be even more surprising that this portrait, by that grand homme de la patrie, is not merely flattering but reverential. Yes, Hugo saves many sharp elbows for the clerisy. Yes, he has a rather pantheistic conception of Christianity. But it seems churlish today to dwell on these matters. And it should not go unnoticed that this masterpiece of the French Revolution and post-Revolutionary France leads its charge in praise of a cleric--a good and just man. It is, in its way, a deeply religious novel.
Here is something toward the end of the Book 1, Chapter 14 ("What He Thought"). Happy Bastille Day.
Human meditation has no limits. At its own risk and peril, it analyzes and digs deep into its own bedazzlement. One might almost say, that by a sort of splendid reaction, it dazzles nature; the mysterious world which surrounds us renders back what it has received; it is probable that the contemplators are contemplated. However that may be, there are on earth men who—are they men?—perceive distinctly at the verge of the horizons of reverie the heights of the absolute, and who have the terrible vision of the infinite mountain. Monseigneur Bienvenu was not one of these men; Monseigneur Welcome was not a genius. He would have feared those sublimities whence some very great men even, like Swedenborg and Pascal, have slipped into insanity. Certainly, these powerful reveries have their moral utility, and by these arduous paths one approaches to ideal perfection. As for him, he took the path which shortens,—the Gospel’s.
He did not attempt to impart to his chasuble the folds of Elijah’s mantle; he projected no ray of future upon the dark groundswell of events; he did not see to condense in flame the light of things; he had nothing of the prophet and nothing of the magician about him. This humble soul loved, and that was all.
That he carried prayer to the pitch of a superhuman aspiration is probable: but one can no more pray too much than one can love too much; and if it is a heresy to pray beyond the texts, Saint Theresa and Saint Jerome would be heretics.
He inclined towards all that groans and all that expiates. The universe appeared to him like an immense malady; everywhere he felt fever, everywhere he heard the sound of suffering, and, without seeking to solve the enigma, he strove to dress the wound. The terrible spectacle of created things developed tenderness in him; he was occupied only in finding for himself, and in inspiring others with the best way to compassionate and relieve. That which exists was for this good and rare priest a permanent subject of sadness which sought consolation.
There are men who toil at extracting gold; he toiled at the extraction of pity. Universal misery was his mine. The sadness which reigned everywhere was but an excuse for unfailing kindness. Love each other; he declared this to be complete, desired nothing further, and that was the whole of his doctrine. One day, that man who believed himself to be a “philosopher,” the senator who has already been alluded to, said to the Bishop: “Just survey the spectacle of the world: all war against all; the strongest has the most wit. Your love each other is nonsense.”—“Well,” replied Monseigneur Bienvenu, without contesting the point, “if it is nonsense, the soul should shut itself up in it, as the pearl in the oyster.” Thus he shut himself up, he lived there, he was absolutely satisfied with it, leaving on one side the prodigious questions which attract and terrify, the fathomless perspectives of abstraction, the precipices of metaphysics—all those profundities which converge, for the apostle in God, for the atheist in nothingness; destiny, good and evil, the way of being against being, the conscience of man, the thoughtful somnambulism of the animal, the transformation in death, the recapitulation of existences which the tomb contains, the incomprehensible grafting of successive loves on the persistent I, the essence, the substance, the Nile, and the Ens, the soul, nature, liberty, necessity; perpendicular problems, sinister obscurities, where lean the gigantic archangels of the human mind; formidable abysses, which Lucretius, Manou, Saint Paul, Dante, contemplate with eyes flashing lightning, which seems by its steady gaze on the infinite to cause stars to blaze forth there.
Monseigneur Bienvenu was simply a man who took note of the exterior of mysterious questions without scrutinizing them, and without troubling his own mind with them, and who cherished in his own soul a grave respect for darkness.
Tuesday, July 11, 2017
Just a couple of items to flag for readers.
First, have a read of Paul Horwitz's well crafted review of John Inazu's book, Confident Pluralism. I was particularly interested to see Paul's steps toward a defense of the positive virtue of pluralism (as opposed simply to its observation as a social fact to be managed). This is, at least for me, a difficult step to take with respect to pluralism: in my own work, I incline much more toward the "fact of pluralism" side of things. But Paul and, of course, John, are making the case with their usual panache.
Second, my colleague Mark Movsesian and I have recorded a podcast wrapping up 3 major law and religion cases either decided by the Supreme Court or on for decision next fall. Hope you have a listen.
Monday, June 26, 2017
Trinity Lutheran Church has just come down, and Tom has a nice summary and set of good comments below. I agree with much of what he says, though I have a different sense of the considerable staying power of separationism than he does. More on that in the coming months.
For now, here's one thought: this case concerned Missouri's Blaine Amendment, which is quoted in full by the Court. Many states have similar amendments, enacted frequently sometime after the failure of James G. Blaine's proposed federal constitutional amendment. The Blaine Amendments are the subject of great controversy in legal scholarship because of the anti-Catholicism that has been shown to have motivated them--the "animus" in the conventional argot. Some scholars believe that this motivational evidence is overblown. Others believe that even if the evidence exists, these provisions can be justified today on "neutral" grounds, or grounds of public reason liberalism, or some such grounds. Discussion about the Blaine Amendments' tainted genesis--their anti-Catholic animus--has been on the law and religion scholarly agenda for years. And in Locke v. Davey, the opinion of CJ Rehnquist for the Court focused very much on animus issues (Justice Scalia, in his dissent, disputed that animus was relevant, insisting instead that what the law did was relevant). In Mitchell v. Helms, another funding case where the challenge was on Establishment Clause grounds, Justice Thomas devoted a chunk of his plurality opinion to disavowing the claim that aid to "sectarian" schools is justified on Establishment Clause grounds as tainted by wicked animus:
Finally, hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow....Although the dissent professes concern for “the implied exclusion of the less favored,” the exclusion of pervasively sectarian schools from government-aid programs is just that, particularly given the history of such exclusion. Opposition to aid to “sectarian” schools acquired prominence in the 1870's with Congress' consideration (and near passage) of the Blaine Amendment, which would have amended the Constitution to bar any aid to sectarian institutions. Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that “sectarian” was code for “Catholic.”
Mitchell did not involve a state Blaine Amendment. Trinity Lutheran did. And yet you will search in vain for any reference to Blaine Amendments, the constitutional history of the period, "animus" analysis (or even the word "animus"), the motivation of those who excluded Trinity Lutheran from the funds at issue, or indeed any inquiry as to motivation. The focus is squarely on what the law did here, in this case, seemingly for this day only. In classic Roberts style, it is exquisitely minimalist. Just like Hosanna-Tabor, it goes in for hyper-particularism. This is why I very much agree with Tom's point # 3 below. Indeed, the Chief's opinion is taken to task by Justice Gorsuch for being insufficiently "principled." Justice Gorsuch would have preferred a decision more maximal in nature.
But quite apart from the scope of the decision, nobody, but nobody, went in for deep dives into motivational inquiry in this case. It will be interesting to see just how that methodological preference works itself out in future disputes.
Tuesday, June 6, 2017
Of course Rob is right just below to put serious questions to the view that we are resolutely not to judge when it comes to professional and other cultural values, and not to "impose" "our" values on law students as we acculturate them into the legal profession.
He is right because law is all about values and their imposition on others. Law may not be command pure and simple, but much of it is command. And even the part that is not command presupposes and incorporates moral views and dispositions at every level, to include evaluations of the proper scope of moral disagreement within the profession and the culture at large. If you are not interested in good (i.e., moral) governance, law is not for you. There is no line between the values that a law instantiates that are "moral" and those that are not. They are all moral.
The trouble is that anti-legal moralism dies very hard, dating all the way in our own tradition from the fight between Stephen and Mill and right on through to the present, a fight that the legal moralists have been widely proclaimed to have lost. Many students, in particular, have been raised on a soft and not well thought-through moral libertarianism that forces and reinforces all kinds of morality onto and into students--but does so sub silentio with the pretense of not being a morality at all. That ostensible moral libertarianism in law--itself a legal moralism--infuses much of the law, including, very much, the doctrines of the First Amendment (but many others too), and much of the instruction in law school. It's time we stopped talking about moral neutrality--in law and in law school--and started talking about the way the law, and the way that law schools, do, and should (two different sets of discussion), privilege certain moral positions and downgrade others.
But that will require a good deal more than forcing clinic and other offerings--most of which do, in fact, reflect very specific ideological commitments and which are, as John McGinnis has put it, "enterprises of political action"--down the throats of students pro bono publico. It will require, first, turning a highly critical eye on the existing frameworks, and, second, forging a shared sense of pro bono publico from the fragments one can see adumbrated in the disagreement between Rob and his interlocutor.
Thursday, May 18, 2017
Apropos our upcoming Anglo-Russo comparative tradition and traditionalism conference, it seems Time Magazine has a late developing interest as well.
But I'm afraid the conference is closed to the media.
Tuesday, May 16, 2017
Rod Dreher's recent book, The Benedict Option, is an interesting meditation on the future for Christians in what he describes as a post-Christian culture and society. In this extended, candid, and far-ranging interview, my colleague, Mark Movsesian, discusses the book's claims with Rod and much else that may interest MOJ readers. A bit:
Movsesian: I wonder if we could talk about tradition, which runs like a red thread through your book. You argue that it’s necessary for Christians to return to tradition in order to resist “liquid modernity,” which denies the value of all attachments and identities except those individuals freely choose for themselves. In liquid modernity, the only thing that has meaning is momentary individual choice. This is quite destabilizing for individuals and for society; that’s where tradition can be helpful.
As co-director of the Tradition Project, I have sympathy for your view! But I think there’s a paradox about tradition in a pluralist society like ours. In such a society, tradition is itself a matter of individual choice; there’s no avoiding it. Tradition is just one available option among many for an individual to choose; in the end, each of us is free to choose tradition or to reject it; to choose it and then reject it; or to choose some aspects of it and not others. This is true even of people brought up in a tradition—like the kids attending classical Christian schools today. What do you make of this paradox?
Dreher: There’s no escaping it. I am quite aware of the near-absurdity of my own personal case: a 50-year-old man raised a nominal Methodist, a convert to Catholicism in my mid-20s, converting to Orthodox Christianity at 39, and having moved around the country a great deal for my career, writing a book in praise of tradition. Yet … what else is there? Charles Taylor says that we all live in a secular age, which he defines as the awareness of the possibility that we don’t have to live the way that we do. We cannot escape choice.
This is why our St. Benedict, if we are to have one, must be new and very different, as MacIntyre said. The first Benedict emerged in a West that was still new to Christianity. Now we have been through the Christian era, and can’t un-see what we have seen. And the consciousness of an ordinary person living in the 21st century can hardly be compared to the way a 6th century layman saw the world conceptually and imaginatively. This point hardly needs elaboration, but it conditions any approach to tradition we make today.
To bring this discussion down to earth, I think a lot these days about my late father and sister, who were in most respects traditionalists without knowing what they were doing. That is, they assumed that the rural way of life they had in south Louisiana was going to continue forever. They were quite intelligent, but they strongly rejected as alien anything that challenged their way of seeing the world. That meant rejecting me, and the things that I loved and stood for, though I didn’t realize how thorough this rejection was until I returned to south Louisiana after my sister’s 2011 death. My dad died in 2015. The family has not held together, for various reasons – and this was something I never expected. I deeply admired the unselfconscious traditionalism that my dad and sister represented. They didn’t theorize this stuff; they lived it. But I can see in retrospect that they believed that force of their iron wills was sufficient to ward off all threats to the things they valued most, especially family and place. It was a tragic mistake. Their rigidity, by which I mean their unwillingness to adapt and to change certain things that needed to be changed for the sake of holding on to the things that really mattered the most – that was the fundamental flaw that doomed the entire thing. They thought that stoically preserving their fortress-like outer walls would keep the interior safe. They were wrong.
It’s heartbreaking and tragic in the fullest sense of the word, and a very Southern tragedy too. But I try to learn from what happened. I suspect I’ll spend the rest of my life trying to learn from what happened. Right now, I think the most basic lesson is the need for discernment in our approach to tradition. There is no substitute for it. We have to know what we have to change so we can conserve what is essential. This is hard.
On the more optimistic side, though, I believe that we are starting to see more and more people realizing that the future is not determined. Yes, I think we have to be aware of all that is against us in post-Christian modernity, but we also have to be aware that God can surprise us – and we can surprise ourselves. I mean, look, Napoleon closed the monastery in Norcia, St. Benedict’s hometown, after at least eight centuries of constant presence there. For nearly 200 years, there were no monks. And then, at the turn of the millennium, a handful of American Benedictines who wanted to live in the old Benedictine way re-opened it. Now they have a thriving community of 16 monks. The average age is 33. Who could have expected that?
In The Benedict Option, I quote one of those monks, Father Martin Bernhard, who left the Texas Hill Country to follow his calling to Norcia. When I visited him there in early 2016, I told him that they are a sign of contradiction to the modern world. He smiled, and said that anybody could do something out of the ordinary if they are willing “to pick up what we have lost and to make it real again.”
The monk told me, “People say, ‘Oh, you’re just trying to turn back the clock.’ That makes no sense. If you’re doing something right now, it means you’re doing it right now. It’s new, and it’s alive! And that’s a very powerful thing.”
God knows it will not be easy to revive traditional Christian life and practices. But again: what else is there?
Tradition and Traditionalisms Compared: A Joint Program of The Tradition Project and the Post-Secular Conflicts Project
I'm pleased to announce this conference, to be held in Trento, Italy on June 12-13, which my colleague, Mark Movsesian, and I are putting on jointly with Professor Kristina Stoeckl of the University of Innsbruck, Professor Pasquale Annicchino of the European University Institute, and Professor Marco Ventura, the Head of the Religious Studies Program at the Fondazione Bruno Kessler.
The conference will compare tradition and traditionalism in the Anglo-American and Russian historical experience (for those who do not know Professor Stoeckl's very fine book on Russian Orthodoxy and human rights, allow me to recommend it), and we're happy to have MOJ denizens Moreland and Vermeule joining us. There is something fitting about American and Russian scholars descending on the Dolomites and the locus of the Concilium Tridentinum to discuss and reflect on the respective traditions that they study.
Monday, May 8, 2017
From Patrick Deneen's essay, "Ordinary Virtue," in his collection of essays, Conserving America: Essays on Present Discontents 52-55 (2016) (footnotes omitted):
When one thinks back on those men who moved the nation to declare independence, cool reflection forces one to think not of how much they stood to gain by gaining independence from England--for it's not obvious that many, if any, stood to gain much at all--but how much they stood to lose by committing this act of treason in the eyes of England....
These were men with a great deal to lose--including, for most, significant fortunes by the standards of those days....What is all the more remarkable was their willingness to pledge their lives--which several did lose in the course of the revolution. The signers were keenly aware of the likelihood of execution for signing the Declaration....
The willingness to pledge their lives for the sake of independence is remarkable especially because the first part of the document is based extensively on the philosophy of John Locke. Locke famously argued that political community was the result of a social contract that people formed in the State of Nature. Because the State of Nature is eventually so disadvantageous to individuals--perhaps not as awful as Hobbes' conception of the state of nature, who described it as "nasty, brutish, and short," but not a condition that ultimately accords human beings with sufficient guarantees of security, much less justice--natural men sacrifice some of their natural freedoms to form a government that will act as an impartial judge and protector of the contracting agents. The government is charged with preserving the rights of citizens--among them "life, liberty, and property" in Locke's version--and when government encroaches too much on these rights, then we reserve the right to revolt against that government, and revert back to a State of Nature to form a new social contract.
What one has to notice is that there is a basic tension in the basic fabric of this theory. Social contract theory is based on the premise that we value, above all, self-preservation--even more than we value our total liberty, since we give up some liberties from the State of Nature in order to institute a government that can protect our lives from the depredations of others. Hobbes, for one, so feared reversion back to the State of Nature that he concluded that government could demand anything of its citizens except to force anyone to be willing to die....Locke is a bit more ambiguous about what conditions would justify outright revolution, but the conditions have to be much worse than the worst conditions of the State of Nature. And yet, for the men who signed the Declaration, this was clearly not the case--their lives were not personally in danger before they declared independence, and their lives suddenly were in grave peril afterwards.
Liberal theory has always had a bit of a hard time dealing with this conundrum, that is, how to call on the willingness to sacrifice even one's life for the sake of one's core principles of liberty, since liberalism itself places a very high premium on self-preservation. Under such a set of philosophical presuppositions, how can one be encouraged to value liberty even more than self-preservation? Tocqueville noticed this difficulty during his visit to the United States in the 1830s, remarking that democratic citizens had a tendency to justify every act in terms of self-interest, even those acts that might be justifiably construed as inspired out of generosity, sacrifice and duty, even the willingness "to sacrifice a part of their time and their wealth to the good of the state." Tocqueville surmised that, over time, the language of self-interest would exert a formative influence upon democratic man's self-understanding: "for one sometimes sees citizens in the United States as elsewhere abandoning themselves to the disinterested and unreflective sparks that are natural to man; but the Americans scarcely avow that they yield to movements of this kind; they would rather do honor to their philosophy than to themselves."
Friday, May 5, 2017
Though that could certainly describe President Trump's "Executive Order on Religious Liberty" issued yesterday, I have something different in mind in this article. A bit:
Welcome to the rise of fake law. Just as fake news spreads ideologically motivated misinformation with a newsy veneer, fake law brings us judicial posturing, virtue signaling, and opinionating masquerading as jurisprudence. And just as fake news augurs the end of authoritative reporting, fake law portends the diminution of law's legitimacy and the warping of judges' self-understanding of their constitutional role.
Thursday, May 4, 2017
Here's something else from Pierre Manent in a little book of his originally published as Situation de la France and translated as Beyond Radical Secularism (p.55):
In the present configuration of things, the demand for freedom of opinion and expression without restriction, as essential as it may be, as I have repeated, is not sufficient to prepare us adequately for the challenges that await us. This demand, as I have explained, is not even sufficient to produce a sufficiently enlightened freedom. The abstract principles of modern politics may be products of long experience, but they are not by themselves capable of producing the community of life and experience that they help so usefully to organize. Their abstraction, as I emphasized in discussing secularism, tends to distance us considerably from the experience that they are supposed to distill, to make us forget the meaning of this experience, and to give the illusion that we have only to apply them in order to live together freely and happily.