Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, May 8, 2017

Deneen on Social Contract Theory and the American Founders

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."

May 8, 2017 in DeGirolami, Marc | Permalink

Friday, May 5, 2017

Fake Law

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. 

May 5, 2017 in DeGirolami, Marc | Permalink

Thursday, May 4, 2017

Manent on the Necessity and Insufficiency of the Principle of Free Speech

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.

May 4, 2017 in DeGirolami, Marc | Permalink

Tuesday, May 2, 2017

Save the Date: Sir Roger Scruton Keynotes The Tradition Project, Part II

Tradition Project

It may be a little early, but as calendars tend to fill up, please save the date for Sir Roger Scruton's keynote address for the second part of The Tradition Project, which will focus on "Tradition, Culture, and Citizenship." Sir Roger will open our conference with a lecture on the evening of Thursday, November 2, 2017, at the New York Athletic Club. Further details will be forthcoming in the fall. Please write to me or Mark Movsesian if you are interested in attending the lecture.  

For more about Part II of The Tradition Project, see this post. And for an illuminating treatment of Sir Roger's thought across the decades, see this recently published piece in The New Criterion.

May 2, 2017 in DeGirolami, Marc | Permalink

Friday, April 21, 2017

Pierre Manent on Republicanism

From his very interesting article in the latest issue of First Things, "The Tragedy of the Republic," in which Manent explores some of the themes of Shakespeare's Roman plays in describing the nature of a republic:

The first political dimension is especially disagreeable and bitter for us, but for this reason it is particularly useful: The principle of the republic is aristocratic; the spirit of those who govern a republic is aristocratic pride, the pride of the few who are capable and virtuous. Coriolanus takes this pride to the point of insolence and furor, but it remains the general principle of the regime. The life of the republic rests on the emulation of those who judge themselves to be the most capable of governing the city and who expect from the city honors proportionate to their service. This aristocratic character belongs to the essence of a self-governing political body, one that wishes to be governed by the best. The modern device of representation is designed to manufacture artificially, with the consent of the many, a few who are capable, if not virtuous.

April 21, 2017 in DeGirolami, Marc | Permalink

Tuesday, March 14, 2017

On The Boy Who Cried Wolf Hypothesis (Further Thoughts in Response To Rob)

A couple of further thought in response to Rob, with whom I am greatly enjoying an exchange concerning perceptions of discrimination against Christians.

First, Rob writes that Christians are "lead[ing] the charge" against Muslims in some communities, citing conservative Christian support for so-called anti-Sharia laws and for the denial of zoning permits for the construction of mosques. I wonder if this is true. No doubt some conservative Christians do support these policies. But some say that those leading the charge today against immigrants, and those most hostile toward Muslims (and African Americans, and others, too), from the right tend to be non-Christians, not Christians. Rob suggests that the failure of some conservative Christians to advocate against, e.g., anti-Sharia laws might "smooth the way for the demonization of conservative Christians." Perhaps that is true, but the point assumes that politics rewards a kind of principled, rational consistency (I have disagreed with Tom Berg in a similar way before, regarding his view that politics rewards reciprocality and consistency). Conservative Christians, the argument seems to say, are likelier to be rewarded with non-demonization if they support the non-demonization of another group. But it seems to me that the real reasons for Christian demonization are located in very different places than these, and that the question of whether Christians will or will not be demonized as a political and/or cultural matter depends on much more powerful political and cultural forces. To name two: the cultural desires and aspirations of the secular left and of religiously disengaged conservatism.

Second, Rob says that Christians should be "specific and restrained" in pointing out discrimination against Christians. The reason is that "our too-easy embrace of that narrative [of discrimination and/or persecution]...can limit its power when we need it most." I don't think I agree with this point, but whether I could agree with it or not would depend upon facts I don't presently possess. The point being pressed by Rob could be called "the boy who cried wolf" hypothesis--the more frequently Christians point out episodes of discrimination and/or persecution against themselves, the more likely they are to be labeled "whiners" or some similarly dismissive appellation by their cultural and political opponents, and the less likely they will be to succeed when they invoke the charge of discrimination and/or persecution when it "really" happens. But why should one think that invoking discrimination is like this? To the contrary, why should one not think that the more one invokes the discrimination/persecution charge, the more powerful it becomes. And the less frequently one invokes it, the less plausible it seems (as, indeed, it seemed very implausible to the Washington State Supreme Court in the example Rob cites, notwithstanding what are to me the entirely persuasive arguments that Rob himself makes). You could call it the muscle hypothesis--the more you exercise, the stronger you get. There are many other examples of the power that the charge of discrimination can generate on behalf of a cause as a legal and political matter. Indeed, constitutional law (among other areas) is absolutely stuffed to the gills with them. If the objective is legal or political success, I'm not sure that I would accept the boy who cried wolf hypothesis as just self-evidently true, at least not without further evidence that this is, in fact, the likely outcome of "too many" claims of discrimination/persecution. In this instance, less may not be more. More may be more.

March 14, 2017 in DeGirolami, Marc | Permalink

Monday, March 13, 2017

Disagreement With Rob

I see things a little differently than Rob does in his latest post concerning discrimination against Christians. I hasten to add that I am neither an Evangelical conservative Christian nor have I ever listened to Christian rock. I also have not read the original piece to which Rob links. The disagreements run to a number of issues, and as to some I am not sure they are disagreements at all. But for purposes of this post, let me point out three:

  1. Objection from demandingness: Rob says that "[i]f millions of Americans who (should) care deeply about religious liberty fundamentally misperceive where the most potent threats are aimed, religious liberty for all is on shaky ground." I am not sure this argument is correct. A person could perceive certain threats to religious liberty and not others, and still make contributions to the protection of religious liberty. He or she could defend certain principles in certain contexts and not in others, and still help toward the defense of those principles. That person need not have to perceive all threats, as well as the relative strength of those threats, and make all possible defenses. But Rob seems to say that if one does not do this, then one is contributing to the weakening of religious liberty. That imposes a very high standard on people to perceive accurately the quality of all threats and defend religious liberty accordingly. Otherwise they are weakening religious freedom.
  2. Global context: Rob may not have been saying this, but I also do not agree that Americans should recognize that discrimination and persecution of Christians is, at least as a global phenomenon, of lesser importance or significance or urgency than discrimination against other religious groups. In fact, if anything it is secular Americans, not Evangelical Christians, who fundamentally misperceive where the most potent threats to religious freedom are aimed. Those threats are aimed at Christians in the Mideast. The American political regime that preceded this one consistently, almost willfully, misperceived that threat to religious freedom. Many American Christians seem not to perceive the atrocities that have been and are occurring to their co-religionists, and that my colleague, Mark Movsesian (among others), has documented. But I am not sure that I blame them for this. Here again, I revert to the first point of disagreement. It will be very difficult to protect religious freedom if every person has to accurately assess the relative strength of various threats to religious freedom and protect them in corresponding proportion. Whose metrics will be used? What happens when we disagree about the relative power of the threats? Is it not better to allow for different constituencies to emphasize and advocate for different problem issues? Is it not a more realistic approach that might result in the collective strengthening of religious freedom?
  3. Just Wait Until It's Worse!: Finally, I disagree with an implication of Rob's post: that until Christians in this country have it as bad as other constituencies, they need to recognize their own relatively insignificant lot and wait for things to get worse before they can really start to complain. Rob almost certainly did not mean to say this, but the argument he makes reminds me very much of the 'now that's real persecution' style of argument. It is of course true that people ought to be concerned with severe violations of religious freedom. But I do not think it is true that people ought to measure or evaluate the state of their own religious freedom only by comparison with its worst violations. There is inevitably a kind of recursion to the lowest common denominator in these kinds of arguments, a suggestion that until American Christians endure the same sorts of threats as others, they are just "whining." I must say that this argument (as I've written before) has always been mysterious and borderline perverse to me. Assuming the threats to religious liberty (as in point 1) to be of differential urgency, why is it necessary for those threats to become much, much worse before we will acknowledge their legitimacy?

UPDATE: Apropos, an interesting column by Damon Linker today on the very subject of "Why so many conservative Christians feel like a persecuted minority."

March 13, 2017 in DeGirolami, Marc | Permalink

Tuesday, February 28, 2017

An Atheist and a Monk Discuss Church-State Separation and the Justification of Punishment

In preparation for an upcoming conference on Russian traditionalism, I thought it was a good moment to pick up Dotoyevsky's "The Brothers Karamazov." In a fairly early part of the book, I came across the following incredible exchange between Ivan Karamazov and the Orthodox monk "Elder," Father Zossima, concerning the separation of church and state and its effect on the justification of criminal punishment. It's as interesting and useful a reflection (particularly by the monk) on these issues as one can find anywhere:

"If everything became the Church, the Church would exclude all the criminal and the disobedient, and would not cut off their hands," Ivan went on. "I ask you, what would become of the excluded? He would be cut off then, not only from men, as now, but from Christ. By his crime he would have transgressed not only against men but against the Church of Christ. This is so even now, of course, strictly speaking, but it is not clearly enunciated, and very, very often the criminal of today compromises with his conscience: 'I steal,' he says, 'but I don't go against Church. I'm not an enemy of Christ.' That's what the criminal of today is continually saying to himself, but when the Church takes the place of the State it will be difficult for him, in opposition to the Church all over the world, to say: 'All men are mistaken, all in error, all mankind are the false Church. I, a thief and murderer, am the only true Christian Church.' It will be very difficult to say this to himself; it requires a rare combination of unusual circumstances. Now, on the other side, take the Church's own view of crime: is it not bound to renounce the present almost pagan attitude, and to change from a mechanical cutting off of its tainted member for the preservation of society, as at present, into completely and honestly adopting the idea of the regeneration of the man, and of his reformation and salvation?"


"Yes, but you know in reality it is so now," said the elder suddenly, and all turned to him at once. "If it were not for the Church of Christ there would be nothing to restrain the criminal from evil-doing, no real chastisement for it afterwards; none, that is, but the mechanical punishment spoken of just now, which in the majority of cases only embitters the heart; and not the real punishment, the only effectual one, the only deterrent and softening one, which lies in the recognition of sin by conscience....

"[A]ll these sentences to exile with hard labor, and formerly with flogging also, reform no one, and what's more deter hardly a single criminal, and the number of crimes does not diminish but is continually on the increase....Consequently the security of society is not preserved, for, although the obnoxious member is mechanically cut off and sent far away out of sight, another criminal always comes to take his place at once, and often two of them. If anything does preserve society, even in our time, and does regenerate and transform the criminal, it is only the law of Christ speaking in his conscience. It is only by recognizing his wrongdoing as a son of a Christian society--that is, of the Church--that he recognizes his sin against society--that is, against the Church. So that it is only against the Church, and not against the State, that the criminal of today can recognize that he has sinned. If society, as a Church, had jurisdiction then it would know whom to bring back from exclusion and to reunite to itself. Now the Church having no real jurisdiction, but only the power of moral condemnation, withdraws of her own accord from punishing the criminal actively. She does not excommunicate him but simply persists in fatherly exhortation of him. What is more, the Church even tries to preserve all Christian communion with the criminal. She admits him to church services, to the holy sacrament, gives him alms, and treats him more as a captive than as a convict. And what would become of the criminal, O Lord, if even the Christian society--that is, the Church--were to reject him even as the civil law rejects him and cuts him off? What would become of him if the Church punished him with her excommunication as the direct consequence of the secular law?

"There could be no more terrible despair, at least for a Russian criminal, for Russian criminals still have faith. Though, who knows, perhaps then a fearful thing would happen, perhaps the despairing heart of the criminal would lose its faith and then what would become of him? But the Church, like a tender, loving mother, holds aloof from active punishment herself, as the sinner is too severely punished already by the civil law, and there must be at least someone to have pity on him. The Church holds aloof, above all, because its judgment is the only one that contains the truth, and therefore cannot practically and morally be united to any other judgment even as a temporary compromise. She can enter into no compact about that. The foreign criminal, they say, rarely repents, for the very doctrines of today confirm him in the idea that his crime is not a crime, but only a reaction against an unjustly oppressive force. Society cuts him off completely by a force that triumphs over him mechanically and (so at least they say of themselves in Europe) accompanies this exclusion with hatred, forgetfulness, and the most profound indifference as to the ultimate fate of the erring brother. In this way, it all takes place without the compassionate intervention of the Church, for in many cases there are no churches there at all, for though ecclesiastics and splendid church buildings remain, the churches themselves have long ago striven to pass from Church into State and to disappear in it completely. So it seems at least in the Lutheran countries. As for Rome, it was proclaimed a State instead of a Church a thousand years ago. And so the criminal is no longer conscious of being a member of the Church, and sinks into despair. If he returns to society, often it is with such hatred that society itself instinctively cuts him off. You can judge for yourself how it must end....

"What was said here just now is true too, that is, that if the jurisdiction of the Church were introduced in practice in its full force, that is, if the whole of the society were changed into the Church, not only the judgment of the Church would have influence on the reformation of the criminal such as it never has now, but possibly also the crimes themselves would be incredibly diminished. And there can be no doubt that the Church would look upon the criminal and the crime of the future in many cases quite differently and would succeed in restoring the excluded, in restraining those who plan evil, and in regenerating the fallen. It is true," said Father Zossima, with a smile, "the Christian society now is not ready and is only resting on some seven righteous men, but as they are never lacking, it will continue still unshaken in expectation of its complete transformation from a society almost heathen in character into a single universal and all-powerful Church. So be it, so be it!"

February 28, 2017 in DeGirolami, Marc | Permalink

Monday, February 27, 2017

Danish Blasphemy Prosecution for Koran Burning

Here's a fascinating story in the New York Times about a prosecution in Denmark for blasphemy, against a man who burned a Koran and posted his burning to Facebook. It seems that blasphemy laws remain on the Danish books, notwithstanding that the country is, by all accounts, very secular. Though the decision to charge was made at the local level, it has been ratified by Denmark's attorney general.  

No one has been convicted under the Danish blasphemy laws since 1946, when the law was used to prosecute a man who dressed up as a priest and mock "baptized" a doll.

A few thoughts:

1. Apparently the defendant had been charged initially with a "hate speech" crime, but the charge was subsequently changed to blasphemy. Perhaps hate speech is a lesser included offense? The linear continuity of hate speech with blasphemy is itself worthy of a separate article. Indeed, as I have argued at length, but as Tocqueville said more pithily, freedom never governs without faith. The only real question for a society that enjoys some speech protections is for what ends speech will be restricted, not whether it will restrict it at all. Of course, it will. And it seems altogether natural that the proscription on hate speech would in the end find its fullest and most complete expression in the zealotry (I use the term neutrally) of an anti-blasphemy law. (Parenthetically, the man also stated that he hated children. That seems rather sweeping, and perhaps worthy of its own hate speech prosecution. Perhaps if he had said, "I hate some children," one might be more sympathetic.)

2. Denmark of course has a recent history of conflict with Islam, as in the infamous Mohammed cartoon incident about 10 years ago that resulted in no charges, and, as the story says, "deadly riots, attacks on Danish embassies in the Middle East and a trade boycott against Denmark." Perhaps, for these and other reasons, Denmark has come to a different conclusion today. Still, it's clear from the story that the burning of a Bible is legal, since in 1997 a Danish artist burned a copy of the Bible on television and nobody batted an eye. Perhaps what Denmark really needs is to refine its blasphemy laws--to give more detailed guidance about which religious texts may be defiled with impunity and which must be let alone. One thing that Denmark should not do: abandon blasphemy laws. It will only send such laws underground, and similar policies will be enforced through other means without the honesty of calling them what they are (vide, e.g., hate speech).

3.  The defendant's lawyer seems to be making the utterly bizarre claim that the man acted in "self-defense" in burning the Koran, because the Koran contains language about how Mohammed's followers "must kill the infidel." I don't know the Danish law of self-defense, but this strikes me as a highly unusual principle of proportionality. But I suppose we need to know about the physical assaults committed by the Koran on this poor man in order properly to judge the self-defense claim.

4. Don't miss the wonderful comments of Professor Per Mouritsen, who with one side of his mouth tells us that "blasphemy law is a thing of the past" and with the other tells the Times that in Denmark, "the very idea that religion is taken seriously is the antithesis of being a good citizen." Perhaps Denmark should adopt laws authorizing the state-enforced (but nondiscriminatory, of course) burning of all holy books. It could be done on a state holiday. Call it "Conflagration Sunday." 

February 27, 2017 in DeGirolami, Marc | Permalink

Thursday, February 2, 2017

Gorsuch on Intention, the Formation of Character, and the Western Legal Tradition

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.

February 2, 2017 in DeGirolami, Marc | Permalink