Tuesday, November 27, 2012
I was attracted to Tocqueville’s understanding ofAmerican lawyers because I thought he made clear why, if you were interested in "ethics," the law was and is a crucial resource for locating matters of significance in American society. The conflicts and arguments surrounding the law, therefore, can be illuminating for understanding how the moral convictions of Americans work. Thus Tocqueville’s observation, "There is hardly a political question in the United States which does not sooner or later turn into a judicial one." But it turns out that most political questions are moral questions in disguise. So I was attracted to the law because I thought the law exemplified how moral convictions entail a politics and how politics and the law manifest our most significant moral commitments.
Put as directly as I can, I was and continue to be fascinated by the law because it is just so damned interesting. One of the reasons the law is interesting is that its processes manifest a rationality that does not need a ground. For, if Tocqueville is right, American law is a law without a bottom. That is, it is a law without a bottom unless you think the Supreme Court is a bottom. So American law remains one of the paradigmatic places you can go to see the moral convictions of the American people displayed. Those convictions may not be my convictions, but the convictions that make me a Christian mean I cannot afford to ignore my neighbor.
[P]erhaps there are seasons in the church's earthly pilgrimage in which a theology of Lent requires special emphasis. Maybe the low notes of penitence and apophaticism need, at times, to be sounded more than do the joyous strains of Christmas or Pentecost. If our time is indeed, as Charles Taylor has dubbed it, "a secular age" in which the shiny promises of prosperity and certainty have become impossible for many would-be believers to accept, then perhaps we need a Lenten theology as an antidote. Perhaps we need to be reminded of the difficulty, and not just the clarity, of the gospel we preach. If so, there's no better Lenten theology than that of Rowan Williams.
Steve Smith has posted an enjoyable and thoughtful short essay (written with his distinctive grace and humor) about the implications of the developments in neuroscience for our legal understanding of the person (including our understanding of various issues in criminal law). With an interesting qualification, his general sense is, there are no major destabilizing implications -- hence his genial complacency. Here's a fragment involving that qualification, on the issue of whether neuroscience will affect our views about the intrinsic worth of the human person (footnotes omitted):
A better understanding of how the brain works and how it causes or correlates with mental states does not in itself tell us anything about whether persons have intrinsic worth, so far as I can see. Neither does an account of how persons may have evolved from other organisms. But it is possible that by giving more cachet to a naturalistic approach to understanding, advances in neuroscience and evolutionary psychology might contribute to the ascendancy of a worldview– or as I sometimes put it, an “ontological inventory" -- in which things like intrinsic value don’t register. In this way, it is conceivable that neuroscience might for some people undermine belief in intrinsic value in the same way that for some people science undermines belief in God– not by scientifically demonstrating that God (or intrinsic value) aren’t real, but by promoting and reenforcing a vocabulary and conceptual framework, or ontological inventory, in which these things just don’t figure.
Some people will find this loss of faith in soul and intrinsic value invigorating; they will feel that their new-found skepticism is an indication of their tough-mindedness, or of their keeping up with current knowledge. Fine. The sad thing, I think, is when someone announces this loss of faith regretfully, because the sacrifice is, so far as I can see, pretty much gratuitous.
This weekend, as every good Catholic is delighted to know, the Fighting Irish finished a wonderful regular season 12-0 with a decisive win over U.S.C.'s "Trojans." (Learn more about the heart-and-soul of this year's team, Manti Te'o, here. Then go here to vote for Te'o for the Heisman. This should be especially fun for you Democrats out there, because you are allowed to vote more than once. I kid! I kid!) Here's hoping the victory of Our Lady's University over the Trojans presages a victory in court for Notre Dame over the unjust and illegal contraception-coverage mandate!
[Photo courtesy of Notre Dame's Matt Cashore and USA Today.]
Prof. Ronald Colombo (Hofstra) has posted a really interesting paper called "The Naked Private Square," which talks about the free-exercise rights of business corporations. Timely stuff! Here's the abstract:
In the latter half of the twentieth century, America witnessed the construction of a “wall of separation” between religion and the public square. What had once been commonplace (such as prayer in public schools, and religious symbols on public property) had suddenly become verboten. This phenomenon is well known and has been well studied.
Less well known (and less well studied) has been the parallel phenomenon of religion’s expulsion from the private square. Employment law, corporate law, and constitutional law have worked to impede the ability of business enterprises to adopt, pursue, and maintain distinctively religious personae. This is undesirable because religious freedom does not truly and fully exist if religion expression and practice is restricted to the private quarters of one’s home or temple.
Fortunately, a corrective to this situation exists: recognition of the right to free exercise of religion on the part of business corporations. Such a right has been long in the making, and the jurisprudential trajectory of the courts (especially the U.S. Supreme Court), combined with the increased assertion of this right against certain elements of the current regulatory onslaught, suggests that its recognition is imminent.
Prof. Bill Brewbaker (Alabama) has posted on SSRN his contribution to an Austin Sarat-edited volume, Matters of Faith (to which I also contributed). Here is the abstract to Bill's paper, "Government for the Time Being":
This short paper is a response to Steven Smith’s argument for an institutional understanding of the Establishment Clause. It challenges Smith’s dismissive posture toward the classical understanding of the “secular.” The classical understanding takes secular to refer “to this time and this world (as opposed to some other time or world, such as ‘eternity’ or the hereafter,” rather than simply denoting a “nonreligious” viewpoint. By focusing on three presuppositions underlying the classical account — (1) the kingship of God, (2) the presence of the church, and (3) the expectation of a world-to-come — the paper argues that the classical account provides a more robust limitation on government than is commonly assumed.
Sunday, November 25, 2012
by Charles Reid, University of St. Thomas School of Law
"Parasites," we are told, "parasites" have consumed their hostess -- to be exact, Hostess Brands, the company that chose bankruptcy last Friday over dealing with its union. And who are these dangerous parasites? The workers who labored hard and long, in the face of steadily declining wages and benefits. See Robert Tracinski, "The Parasite That Kills Its Hostess," Real Clear Markets, November 19, 2012.
Tracinski is merely parroting the company line in his blame-the-victim column. He has allies, of course, in the right-wing commentariat. Take Rush Limbaugh. He may be a tired-out brand name that has long outlived its shelf life, but he was on the air Friday seeing a dark conspiracy in all of this: "The Democrats are taking the long view here, they're playing the long game. The long game is wiping out the Republican Party, not saving 18,000 measly jobs."
Haven't we had enough of the class hatred? Isn't it time to stop with the takers versus the makers? This right-wing fantasy tale of rapacious unions swamping an honest, struggling corporation is as tiresome as it is untrue.
Let's consider some history.
[The rest of this informative post is here.]