Language and Naming Conventions

An Icelandic girl has prevailed in court and will now be able to use her given name, the BBC reports.  Her name must be something ridiculous, right?  Perhaps, “Apple”?  Or “La—ah” (pronounced: “la-dash-ah).  Even better, the old classic “*&^”? 

Blaer Bjarkardottir (left), with mother, Bjork.

Believe it or not, the young lady has a perfectly unexciting name: “Blaer,” which in the Icelandic language means “light breeze.”  Unfortunately for Blaer, the name does not appear on the Icelandic government’s pre-approved database of given names.  Like the French language, Icelandic is carefully guarded and regulated by the government so as to preserve ancient grammar and pronunciation rules, and to protect the “integrity” of a language so close to what was spoken by the Vikings.  Certain names of foreign origin, which might be unisex, or which use symbols that aren’t part of the Icelandic alphabet are all excluded from the aforementioned database.  Once all is said and done, Icelandic parents are free to choose from a list containing around 1,800 names.

Fifteen years is a long time to go without a name.  The Icelandic court undoubtedly reached the right outcome, and for a number of reasons.  First and foremost, it seems far beyond the scope of any legitimate system of government to regulate naming conventions in such a strict manner as in Blaer’s case.  There might be some justification for limited enforcement of naming guidelines.  It would be rather difficult to have a spoken language should names consist merely of unpronounceable symbols.  And it is seems intuitively unfair for a child to have to suffer with a socially offensive name or, say, a name often attributed to the opposite gender.  At the same time, it isn’t immediately clear that the State should be the means of addressing these concerns.  Social pressure, for example, is amazingly capable of addressing these sorts of things.  In the past, the Church would refuse to baptize children who weren’t appropriately named.  And even without such pressure present today, most couples stick to traditional and popular names anyway.  The spontaneous and unplanned regulation of naming does happen, and deviance from the “norm” is infrequent.

A more important reason for resisting this sort of regulation is the effect it has on stifling the natural progression and development of culture, including language.  Words change meaning and social norms and expectations evolve.  Sometimes this is all for the better, and sometimes for the worse.  But to deny this obvious organicism is to ignore the reality and the naturalness of our very being and the modes by which we express that being.

Again, I can conceive of some instances where it might be justified for law to prevent a parent from naming their child something that isn’t really a name, at least as we presently understand it, e.g., “*&^.”  But it is a much harder case to argue for such intervention where a newborn baby’s name might be merely imprudent, offensive, or just plain stupid.  At the very least, the case of Blaer highlights the difficulty here, while also providing a first-hand example of the development of language and naming conventions.  A fascinating case!

Hagia Sophia: A Mosque Once Again?

Father Milovan Katanic has reposted an article from the Washington Times which reports that the Turkish Parliament is considering reconverting the Hagia Sophia, one of Christendom's greatest treasures, into a mosque.  At present, the site is operated as a museum.

Completed c. 360 AD, the great cathedral served as the center of Eastern Christianity for over a thousand years.  With the conquest of Constantinople in 1453 AD, the edifice was converted for use as an Islamic place of worship.  Accordingly, four minarets were added to accommodate muezzins who recite the adhan, or call to prayer, five times each day.  When the secular Turkish Republic was established at the close of the First World War, the government of General Ataturk transformed the Hagia Sophia into a museum, in part to pacify the Greek Orthodox faction which had long protested persecution at the hands of the Turkish Muslim majority.

In recent years, secular forces in Turkey have seemed to be on the retreat as Islamic fundamentalists and more "traditional" political parties rise to power.  A revitalized Turkish conservatism, which looks to the "more Islamic" political movements across the Middle East, has already accomplished radical reforms that would have been unimaginable only a short while ago.  The headscarf, for example, is now allowed in public institutions such as schools, as Reuters reports.  In short, laicite is in retreat.

On some level, I am sympathetic to Turkish Muslims who feel  that their religion and culture is threatened by the secular, republican forces that have dominated domestic politics since the disintegration of the Ottoman Empire.  As the political experience in France can attest, aggressive republicanism and laicism can be just as oppressive and obnoxious to liberty as the most oppressive monarchial or theocratic regime.  That being said, conservative Turkish politicians aren't really interested in accommodating religious practice and expression as we do in the United States.  Instead, as Fr. Milovan seems to suggest, they are motivated by "neo-Ottoman" aspirations.  Their goal is to use the power of the State to enforce religious law and practices, and reestablish, for all intents and purposes, an empire.  (This is somewhat analogous to the political situation in the Russian Federation, where Putin and Russian nationalists wish to retain the sphere of influence enjoyed by the Soviet government.)

This is most unfortunate.  And it provides a perfect example of how intoxicating political power can be.  As the Lord Acton suggested: "power tends to corrupt."  Any movement that bemoans a lack of liberty, if given the right opportunity, will appropriate political power to itself only to aggress and oppress those formerly in power.  It is, as they say, a vicious cycle.

There is also little doubt that this move is another effort to stamp out the great Christian culture that once thrived along the Bosphorus.  So frequently the battled is couched in terms of ethnicity: Greek vs. Turk.  But the heart of the matter concerns religion.  A few years ago, 60 Minutes ran a superb video interview with the Ecumenical Patriarch Bartholomew I.  In the final scene, he described his situation, and the way he feels, with a haunting word: "Crucified."  The status of the Orthodox is pitiful in Turkey.  They truly are treated as second-class citizens.  The restoration of the Hagia Sophia and its reconversion into a mosque will openly pour salt into an already ugly and festering wound.  It will ignite tension between Turks and those few Greek who remain in the area.  And, most importantly of all, it will represent another step towards an increasingly oppressive Turkish state.

Wine Lovers Without Representation: The Future of Massachusetts Wine Shipping

I have the great pleasure of knowing a fine (future) lawyer studying at Cornell Law, Byron Crowe, who is the founder and president of that school's Society for Wine and Jurisprudence.  He was gracious enough to invite me to write a little piece for SWJ's new blog.  The article, "Wine Lovers Without Representation: The Future of Massachusetts Wine Shipping," has just been posted on-line.  Go ahead and check it out.  I don't usually write "humorous" articles, at least since my stint as Opinion Editor at the University of San Diego Vista.  But I thought I'd try my hand at a little levity.  I even decided (finally) on a drinking motto: Vinum merum rubrum et Hiberniæ aqua vitæ

With Byron's prior permission, I'm reposting the article here.  A big thanks to him and his fellow officers and web editors for tech checking what I sent them, which was mostly just links to news articles.  They even added real citations!

Be warned that the version that follows is my original article.  Unlike the one at SWJ (linked above), this "uncensored," "unedited," and "uncut."  Not that this means anything terribly serious.  My political opinions just shine forth a little more brightly.  And I'm my usual verbose self.

*  *  *

I’m a law student and — knock on wood — a future lawyer.  Along with the bench and bar, we try to claim a monopoly on legal expertise.  But you don’t need to go to law school for three miserable, grueling years to know that it’s wrong to ignore the ruling of a federal appellate court.  Even the average Joe knows that once he’s had his day, the show is over.  It’s time to abide and to stifle.  Once you’ve lost your case, you change, you reform, and you conform to the law.  Governor Deval Patrick and the legislators up Beacon Hill must lack this commonsense, as they continue to abridge the rights of Massachusetts wine enthusiasts and their suppliers outright.

Let me fill you in with a little background.  The Commonwealth is known for its proclivity to tax and spend and regulate.  Nowhere else in the Union has there been as remarkable, if not paradoxical, a fusion of liberal progressivism and puritanical culture.  In Massachusetts, you can only buy beer, wine, or booze in a designated liquor store, and it has to be carried out in a package or box.  Alcohol can never be discounted — ergo, no happy hour — and don’t even think about ordering a round of drinks for your friends after that Red Sox victory…because state law limits bar purchases to two drinks per person at a single time.  Oh, yeah…forget bottle service, too.  Suffice it to say, the list does go on.

Associate Justice Kennedy

Back in 2005, the Supreme Court of the United States struck a major blow for oenophiles and vintners in Granhold v. Heald.  Finally, the repressed and thirsty drinkers of the United States — Massachusetts included — had reason to celebrate.  Considering a challenge to New York and Michigan’s restrictions on the importation of out-of-state wines, the Court ruled that regulatory regimes privileging in-state producers were violative of the Commerce Clause.  While the Court recognized the legitimate interest of the states in regulating alcohol under the Twenty-First Amendment, it nonetheless recognized a limit to this power.  The Court was explicit in ruling that states cannot ban or severely limit the direct shipment of wine across state borders while exempting domestic producers from similar restrictions.  Apparently, Justice Kennedy takes the dormant Commerce Clause seriously.

Unfortunately, the Court’s holding only immediately affected regulations restricting the importation of wine in New York and Michigan.  It wasn’t until 2010, in Family Winemakers of California III v. Jenkins, that the First Circuit Court of Appeals ruled that Massachusetts’s own law against the importation of out-of-state wines was similarly unconstitutional.  Martha Coakley, the Commonwealth’s Attorney General, was wise enough to abide by the First Circuit’s ruling, rather than appeal.  And Beacon Hill quickly followed with Senator Robert O’Leary and Representative David Torrisi introducing legislation to bring the General Laws into conformity with the court’s decision.

AG Martha Coakley

That was all three years ago.  Nothing has yet been passed through the state legislature or reached Governor Patrick’s desk that makes any change to the law as it stood in 2006.  And while Massachusetts is hardly alone — 12 other states are still noncompliant with the Supreme Court’s decision in Heald — the Commonwealth’s failure to conform its statutes to protect the recognized rights of drinkers and producers is especially bothersome.  As a recent article reports, all this legislative foot-dragging is confusing.  While the package story lobby and its protectionist allies have held some sway in preventing the necessary reform, the State is loosing precious revenue from licensing fees and excise taxes that could help alleviate the increasing pressure of its worrisome budgetary deficit.

A strong effort is being made to organize concerned citizens to request that their representatives take action to bring Massachusetts into compliance with the law and with the demands of the U.S. Constitution.  FreeTheGrapes.org, a national wine consumer advocacy website, has provided an easy, on-line interface to accomplish just such communication.  I encourage readers from the Commonwealth, or other noncompliant states, to get involved and make their voices heard with élan.  Our rights as wine enthusiasts are at stake.

Wine may be a mere beverage, but it is a great luxury — perhaps even a quotidian necessity — for a great many of us.  It holds pride of place in our gastronomical history and culinary culture.  And it is our recognized constitutional right to purchase it, regardless of where it has been produced.  Shame on Massachusetts for depriving her citizens of the right to enjoy — as Renaissance poet Francis Beaumont might say — the crimson liquor of Bacchus!  Let the Charles River run red (and white) with wine!

Libertarian "Rules of Thumb"

The Freeman, which is published by the Foundation for Economic Education, has posted an insightful article by Lawrence Reed.  I post here the "ten rules of thumb" that Reed suggests are necessary for advancing liberty throughout the next year and further into the future.

1. Get motivated.2. Learn.3. Be optimistic.4. Use humor.5. Raise questions.6. Show you care.7. Seize the moral high ground.8. Develop an appealing persona.9. Don't demand total and immediate acceptance.10. Make allies, not enemies.

This are very fine rules by which any advocate for a freer society ought to live.  Libertarians can be rather rough characters.  There's a lot going against us.  People generally think we don't care about the poor and down-trodden, which is somewhat understandable, given Hayek's argument, for example, as to the "mirage of social justice."  Women and minorities tend not to trust us, since we are generally white, privileged males. (Something which is finally, and thankfully, beginning to change!)  And a fair number of libertarians turn-off moderate, or rather, pragmatic individuals given their tendency towards radical and unflinching positions.  By inculcating a kindler, gentler, and more approachable libertarian "culture," we can advance our policy goals and desired ends without alienating so many individuals as we have heretofore.

Of course, I think there is an important development within the libertarian movement that Reed has failed to address adequately in drafting these "rules of thumb."  Libertarianism is increasingly seen by its adherents as something more than a political philosophy.  That is to say, many libertarians want their political ideology to provide more than mere principles for political life, but also a positive program for living one's own life.  Thus, libertarianism is becoming something thicker and more comprehensive than the Non-Agression Principle (NAP) or any of its variants.  Instead, some libertarians want the sort of systemization enjoyed by Objectivists, who adopt Rand's positions on politics and ethics.

This development is troubling.  At some point I plan to address it more fully, but for now I'll just share my uneasiness with understanding libertarianism as anything other than a political philosophy.  As I see it, the principles of liberty tell me how society -- specifically political society -- ought to be arranged so as to secure our individual freedoms and the free space to exercise our natural liberties.  In this sense, then, libertarianism is negative and devoid of any positive principles that dictate how I ought to act.  

The Harm Principle provides only a limited substantive content that can guide us in making determinations towards behavioral action.  It will, of course, tell us whether we can legitimate choose to act towards others in certain ways.  You cannot, for example, murder another individual without violating your commitment to libertarianism.  But, the NAP fails to guide us in choosing which human goods to pursue in search of a flourishing life.  It provides no standard for determining our moral obligations to others in need of assistance, for example, thus implicating our shared understanding of the virtue of charity.  And it cannot tell us whether certain private actions, say, our sexual preferences or lifestyles more generally, are good and worthy.

I am a devout Catholic.  I am social conservative.  I find many aspects of the libertine lives lived by my fellows in the libertarian movement to be personally objectionable.  I have no interest in using marijuana, heroin, or other drugs.  I find atheism wrong, and agnosticism silly.  And I strongly approve of traditional moral norms.  I recognize the family as the foundation of Western civilization.  Yet, at the same time, I would never choose to enforce these norms on others vis-a-vis the State.  Political society does not exist to attain the moral perfection of its members.  For a long time, this variety of libertarianism seemed to be the norm.  

As I've already mentioned, I think that this is beginning to change.  Libertarianism and individualism have been used to judge the morality of our private actions, our moral decisions.  When brought to its logical conclusion, this effort results in a complete abandonment of any sort of serious metaphysics, as well as a retreat into cultural and moral relativism and subjectivism.  Thus, the philosophical consequences of a "thick" libertarianism are especially worrisome, since they represent, in my estimation, a number of rather unattractive positions.  (On this point, I think I am in complete agreement with the Objectivist, though he would disagree as to which philosophy beside libertarianism ought to comprise our ethic system.)

Perhaps, then, we should add another point to Reed's list: recommitment to the understanding of libertarian as a political philosophy, and not a comprehensive guide for understanding the Good Life and the best path for our individual attainment of eudaimonia.

Legal History, its Methodology, and its Philosophical Implications: Part II

PART II of III
The Illusion of an Analytical and Normative Divide in History and Law

In Part I of this series, I claimed that law is a normative enterprise.  Of course, I realize that this may a controversial claim, depending on my intended sense of normativity.  Many theorists have dedicated their academic careers to distinguishing law from other rule-based categories such as morality.  They claim that law need not be normative in any pre-determined sense.  I admit that the term is loaded and presents an immediate ambiguity that needs to be resolved.  What do I mean, precisely, by claiming that law is “normative”?

I do not mean normative in the experiential sense, i.e., that law demands compliance with respect to individual human behavior.  I do believe this to be true, but I am more concerned with the question of whether the content of law needs to be pre-determined, at least in a provisional sense.  As I see it, law is like any other subset of rules.  It is normative because it is necessarily concerned with how its content ought to be designed (or, on a Hayekian view, how it should be permitted to spontaneously emerge) and how it ought to be enforced.  There are objective standards for what constitutes a good law versus a bad one.  Personally, I believe these standards to be based in morality, but they can premised on any number of things, as I hope to demonstrate.

H.L.A. Hart
(1907-1992)

H.L.A. Hart, the preeminent analytical legal philosopher of the 20th century, argued in his magnum opus, The Concept of Law, that jurisprudence, as was practiced by Blackstone in the Anglo-American tradition and the Scholastics on the Continent, could be distinguished from law qua analytical jurisprudential science.  Legal theory, for Hart, could only concern itself with a descriptive account of what special social rules — or laws — governed any given political society.  It is not the job of the legal theorist, on Hart’s view, to concern himself with whether the observed rules in that political society are “true” in a metaphysical sense.

But therein lies the problem with positivism and even more extreme non-Hartian theories such as American legal realism.  They all fail to successfully divorce law from the “thick” sense of normativity that I seek to identify.  Let me explain.  It is true, for example, that Hart is able to separate law and morality in an immediate sense; it may be the case that the content of a legal system is not dependent on the content of its public morality: the laws of country X need not be, as a matter of necessity, judged by the moral code of the majority of X’s inhabitants (or perhaps even the morality of a minority!).  On the Hartian account, law becomes something more indeterminate.  As the Realist might claim, it becomes simply the result of the political pragmatism of government actors: legislators, judges, etc.

Yet, even the positivist cannot escape the second aspect of normativity that inheres in the law.  While legal validity may no longer be premised on morality, it is instead judged “good” according to social fact, whether that “fact” be pedigree, or the consensual compliance of a majority of legal officials, or any other number of alternative bases.  For law to be a distinct category of political phenomenon, it must be standardized, it must conform to something.  For the natural lawyer, the positive law possess legality, or obliges its subjects, only when conforming to a moralized conception of justice; for the Hartian, it must emerge in compliance with the union of secondary and primary rules, and according to a rule of recognition; and for the “hard” positivist, it must have been the product of a legitimate legislative process, etc.

The illusion of a divide between the analytical and the normative abounds in the law. The foremost example in our own legal system is the concept of “due process” in the United States Constitution.  For many conservatives and legal positivists, “due process” of law is purely procedural, or “analytical”: it represents a set of factual conditions that are either met or are not met.  On the other hand, especially for more progressively-minded persons, “due process” has a substantive content that is independent of procedure.  On this latter view, it should not be enough, for example, that a state government exhaust the proper political channels for overriding a constitutional right, since there are certain realms of human action that should, at the theoretical level, simply be outside the reach of government.  Throwing “process” as a legitimating device, at certain laws will never be able to legally justify their (potentially) illegitimate force.

Ultimately, I think that the distinction between process and substance is much ado about nothing.  Without a theoretical understanding of the demands of process — a substantive theory, that is — it would be impossible to adjudicate challenges under the Fifth and Fourteenth Amendments.  And without some objective procedural standards, it would be difficult to determine when the substantive demands of the law have, or have not, been met.  The two go together.

I see many similarities between this aspect of law’s normativity and the other humane sciences, including history.  Can history be an “objective,” or “unbiased” science of description?  Or does it require a deeper, philosophically-informed substance or content?  In other words, to what extent can (or do) historical propositions represent something more than unloaded factual claims as to what has transpired, objectively-speaking, in the past?

Georg W. F. Hegel
(1770-1830)

I do not mean to claim that history is an impossible field; that we cannot accurately understand the events of the past in some “neutral” form.  At the same time, all history contains a number of subjective elements.  Historical actors will each have their own experiences of reality, and will relate them in different ways.  Historians themselves, based on their own experiences and their own methodologies, will interpret history in divers ways and with diverse results.  Critical methods, revisionism, and alternative histories, such the narrative approach, help to develop this complexity of “doing” history and better understanding the past.

What I am claiming is that “history” cannot be divorced from the historian — its content, like the rules comprising a legal system, are derived according to certain principles that animate the historian.  While this might strike some as hopeless relativism, I do not mean to deny, again, the existence of historical reality — that certain events have transpired in certain ways — or to express unabashed skepticism as to the possibility of disinterested historical methodology accessing that reality.  Rather, I believe it is exceedingly difficulty to achieve an objective, unbiased account of such events.  There is as much room for the historian who tries to approach the past from the difficult position of the unbiased observer, as there is room for the historian who seeks to use history in an instrumental way for some other end.  As Hegel once remarked: Weltgeschichte ist das Weltgericht.  We should not be afraid to embrace history as our judge, as we understand it to be, and to use it in achieving moral (and legal) progress.

Part III will be published within the next week or two.

Legal History, its Methodology, and its Philosophical Implications: Part I - Introduction

Last semester, I took a fascinating class entitled “Historical Perspectives on Law, Constitutionalism, and Culture.”  Every other week or so, a different legal historian would present his or her current research or a forthcoming paper, and the students would provide constructive feedback.  In most cases, faculty members from BU would join the discussion.  It was a unique experience and a definite change from the standard law school curriculum. 

At the end of the course, in lieu of a final examination, we had a dinner party.  Amazing.  We were supposed to discuss the use of legal history in constitutional litigation, but it never really came up in the course of the evening.  Still, the readings assigned for that night never really left my mind, and I ended up writing my final paper on some assorted musings on the infamous “historians’ amicus brief” in Webster v. Reproductive Health Services.  492 U.S. 490 (1989).

I have since revisited that paper and spent some more time thinking about legal history, its methodology (as I understand it), and some philosophical implications.  Over the course of a few blog posts, I want to share these thoughts.  Hopefully, they'll be presented in a logical and organized way . . . but one can only hope.

A note of warning: while I did study history as an undergraduate, I am not a historian. Consequently, I beg the reader’s forgiveness for how I grapple with the philosophical implications of the field’s methodology — at least as I understand it is conceived within the legal academe.  If anything, my failings may inspire some feedback in the comments, and thereby be fruitful nonetheless!

*  *  *

Legal historians are frequently concerned with avoiding the charge of “presentism,” that is, the use of historical facts, or descriptions of the past, in advancing political, or more generally normative claims about how we ought to behave in today’s world.  In another sense, presentism in historical analysis can refer to the use of contemporary terminology, conceptions, and knowledge in interpreting historical situations.  While the former definition suggests an underlying teleological conceptualization of history qua academic science, the latter represents a sort of methodological anachronism.  The two admittedly go hand and hand quite frequently, but they are not necessarily related to one another.

An illustration of the two meanings that I have proposed may prove beneficial.  Consider the concept of popular democracy.  Modern notions of freedom — or more precisely, positive freedom (as Isaiah Berlin might specify) or individual autonomy — require that any given community allow its constituent members to participate in the political process vis-à-vis democratic means.  Indeed, it has become self-contradictory to speak of individual liberty under an absolute monarchy, for example, let alone some other form of authoritarianism.  Consequently, a “presentist” historian may attempt to interpret history through the lens of this modern understanding of “freedom.”  In so doing, he would likely use the condemnatory language reserved for modern dictatorships in describing, say, the mediaeval feudal system, or imperial mercantilism as practiced in the American colonies, even though contemporaries of either period might not have understood these political systems to be “repressive” in the same way.  In the legal context, the presentist would see laws that may never have been understood by their creators to be opposed to “freedom,” as achieving just such opposition.  Finally, the “presentist” historian might suggest that the progress evidenced by history, which has lead to today’s acceptance of popular democracy as a sort of politico-moral imperative, is somehow good and determinative.  In other words, that history has “show” democracy to be something that “ought” to be practiced.

This may seem like an extreme illustration, and in some sense, it is.  True instances of presentism are few and far between.  And even when there are traces of presentism in the legal literature, they are often masked, or difficult to discern.  At the same time, some level of presentism is expected.  Because law is typically understood as a normative system, it makes sense to look to past practices to glean information that can inform contemporary decision-making.  In some sense, this is exactly the project of constitutional originalism, which looks to the original public meaning of constitutional provisions at the time of the Founding, or their ratification.  On this approach to constitutional interpretation, history is very much authoritative.

What I have referred to as teleological presentism, then, is not unknown and may even be ubiquitous.  Yet, presentism can also be witnessed in another sense, and, once again, more so in the context of the law.  I recently read a forthcoming paper from a young professor down South.  His name is unimportant — his paper was only a draft, and I do not want to “cite” him — but his project was fascinating.  In short, he attempted to argue that “federalism” was a concept as amenable to modern liberalism as it is to conservatism and classical liberalism.  I was skeptical when I first read the paper, and remain unconvinced, but that is not so important.  What is important is just how much presentism pervaded his work.  It seemed to me that his whole project was a methodological anachronism, insofar as it adopted modern progressive conceptions of federalism in place of the thicker political understanding that had been adopted by the Founders.

But I digress.  The point is that presentism abounds in legal thinking.  Yet, presentism and deterministic historical accounts are also proliferate in the non-legal historical literature.  Francis Fukuyama and Samuel Huntington are two prime examples from the realm of popular history and political theory.  Fukuyama is infamous for his pseudo-Hegelian theory of the convergence of history in an ultimate “end,” namely, the success of liberal democracy, which he details in The End of History and the Last Man.  In rather Whiggish fashion, Fukuyama generally understands history — whether legal, political, or economic, etc. — as progressing toward the emergence and supremacy of liberal democracy.  All history, then, should be read in light of this evolutionary development, much like Marxian theory understands all history as class warfare moving toward the ultimate victory of communism.  Samuel Huntington, on the other hand, in his rejoinder The Clash of Civilizations, takes a view of history as being marked by the continually volatile relations between different cultures.  In either case, both Huntington and Fukuyama “do” their history with certain philosophical presuppositions as to the nature of their subject of inquiry.

Lawyers, jurists, and legal historians tend to incorporate similar normative criticisms into their academic work as a matter of habit.  And they similarly come to the table with certain philosophical presuppositions, even if they deny this to be the case.  The law is concerned at some level, no matter one’s personal jurisprudential views, with the regulation of human behavior.  One need not be an Austinian to recognize that the law serves an important role as the class of rules enforced by the political community under the guise of a sovereign — even if, like the Natural Lawyer or the Realist argues, there might be “more to the story.”  Insofar as law itself is normative, even if only in a phenomenological or experiential sense, lawyers et al, will be concerned with how it ought to be designed and implemented, and how justice ought to be met.

Obviously, I will be unable to provide an exhaustive account of my views on these matters.  But I hope, nevertheless, to undertake a cursory explanation for how and why history can (and should) be used to inform (and influence) judicial decision-making and legislation.  In short, I do not see history as some purely analytical science that is immune from biases, prejudices, and other such presuppositions.  And I do see history as being a useful tool, especially in conjunction with other sciences such as philosophy, political theory, and economics, in ordering society and our legal order.

Objectivist (inter alia) Dating Websites

Big Think via Public Reason:

With Internet romance sites catering to virtually every interest . . . you'd think there would be something for philosophy fans.  Well, there is, but the pickings are extremely limited.  If you're a devotee of the greed-preaching Tea Party inspiration known as Ayn Rand, and you think total self-reliance is compatible with romance, you are in luck.

My favorite is probably the Hannah Arendt suggestion:

AmorousArendtians.com - "Spice up your vita activa"

Apparently, there is also an on-line dating website for Objectivists.  Really.  It has nearly 30,000 user profiles! All jokes aside, I think Rand's philosophy of love is . . . interesting.  It is easily misunderstood, as is most of Rand's work.  Selfishness, as an Objective understands it, is more like rational self-interest.  Unlike a pure altruist, the properly selfish person doesn't sacrifice himself to others, or reduce himself to a mere means.  This is all highly simplified, but I think it conveys the general idea of Rand's basic ethical principle; it isn't all about doing what every you want like some hedonist or libertine.

Love is about self-interest at all levels.  You choose to be with another person because you gain something from that relationship, etc.  In The Virtue of Selfishness, I seem to recall a passage describing "true love" in the context of a man whose wife is on the brink of death.  The husband learns that there is a way to save her, but it would require that he loose his own life.  Now, on most accounts, this would be a selfless act, should the man sacrifice his life for that of his beloved's.  But Rand doesn't look at it this way.  She reinterprets this scenario in terms of self-interest: the man is rational and acts rightly in giving up his life for his wife, because it would contradict his love for her to do otherwise.  If he truly loves her, than to have a life without her would be of less value than the one he currently enjoys.  By giving up his life, he doesn't sacrifice it for anyone but himself, since it is a more desirable ending to having to suffer without his spouse.

I suppose this isn't a terribly flattering photo...

I'm not convinced that this captures everything about love about which we should be concerned.  After reading a lot of Rand - including a fascinating 1964 interview with Playboy - I feel like there is something seriously lacking.  I try to be more open-minded than most within the philosophical world when it comes to consider Rand's arguments, and I think she has a lot to offer. That said, I think there is a lot about love in our lived experience which is inexplicable on an Objectivist approach.  Certainly, the idea of the instrumentality of love and erotic desire isn't anything new.  Plato, in Symposium and Phaedrus, discusses how eros inspires in the lover an ascending insight into the Forms.  His motivation, it would seem, is self-interested.

But Platonic love of this variety also requires that the lover inspire in his beloved the philosophical way of living for the beloved's benefit.  I suppose this, too, could be construed as self-interested because it is allows for more meaningful discourse between the lover and the beloved - an important feature of the relationship and its ability to serve the good of the lover in ascending towards noetic insight, etc.  Or it could even be seen as a mark or reciprocity (though not equality) within the relationship - it's simply a "trade" of services.  I don't think this would be accurate, nor would Plato think so.  Indeed, in Aristotle's Nicomachean Ethics, and with the introduction of Christianity, the lover is expected to will the good of the other for the other's own sake.  The mark of true love is an interest in seeing the betterment of the beloved, regardless of the benefit which one might receive.

Ultimately, then, the problem with Rand is her reclassification of everything as self-interestedness.  She makes a sort of category mistake.  Let's return to the hypothetical of the man with the dying wife.  I find it hard to conceive of his life as anything but sacrifice for the simple good of his woman.  How can we really say that he experiences a benefit in death, which cannot even be considered a good?  The momentary happiness he gains between his decision to "pull the trigger" (assuming he's using a gun to do the deed) and the moment when he dies seems of inconsequential value compared to the greater happiness he could acquire in the long-run should he not die.  Once you're dead, it is all over, at least in this life.  (NB: At this point, Rand would call me an irrational mystic, and probably leave the room.)  If one were serious about being self-interested, then staying alive, rebuilding one's life, and finding another lover seems the more ethical decision.  The man who is so impassioned that he chooses to kill himself appears to be irrational.  And it wasn't as if Rand was a big believer in monogamy - just read Atlas Shrugged, or even better, a biography of her own life - so any argument that this was his "soulmate" isn't going to be convincing to an Objectivist.

This is a major problem with Rand.  Everything is somehow derived from "Existence exists" and "A = A."  If we only act ethically when we act in self-interest, then every ethical dilemma is exceedingly simple to resolve.  But I'm not so certain that our world is full of such stark choices.  And I'm certain that love, whether amongst men, or between God and men, is a little more complicated, even mysterious, then Rand is willing to admit.

The Personhood of the Unborn

The "March for Life" was held in Washington, D.C. today.  While I was unable to attend personally, my thoughts and prayers were with everyone -- including many friends and colleagues -- who did have an opportunity to participate.

The continued protection of the "fundamental" right to abortion is an affront to basic moral principles, at least in my estimation.  I know that many people share this view, while just as many disagree.  In the past forty years, however, great strides have been made, and victories won, for the cause of innocent life and its protection.  

Certainly, Roe v. Wade was a travesty.  And for many reasons.  Even liberal scholars and commentators admit that it was sloppily drafted and rests on poor interpretative foundations.  Daniel Williams suggested yesterday, contra the received historical interpretation, that it may even have halted the pro-life movement dead in its tracks so many years ago.

Of course, in some ways, our abortion jurisprudence, while still less than perfect, has come a long way from Roe, and in the right direction, despite what many pro-lifers may think.  Compared to where we were forty years ago, the pro-life movement has gained a lot of traction in reasserting the rights of states in limiting the practice of abortion.  As the Guttmacher Institute -- a pro-abortion non-profit -- reports: 

"Although a core of states in the Northeast and on the West Coast remained consistently supportive of abortion rights between 2000 and 2011, a substantial number of other states shifted from having only a moderate number of abortion restrictions to becoming overtly hostile."

Perhaps, one might say, we should take their reports with a grain of salt.  Nevertheless, I think it remains true that, at least so far, we've been winning.  I don't mean, of course, to imply that the "war" is won; it certainly isn't.  Indeed, the fiercest battles lay ahead.  At present, the largest threat to the protection of life is the current administration.  While I am unaware of any major efforts to liberalize abortion procedures among the many States, the increasing federalization of medical law, and the implementation of President Obama's healthcare reform should alarm pro-lifers.  The coming legal battle over contraception and the protection of conscience rights under the First Amendment, while seemingly trivial to some, could have tremendous implications for more controversial issues such as abortion.

There is one aspect of the abortion debate, and the state of the law, though, which I find deeply troublesome.  Despite the foregoing optimism that I've shared concerning how far we've come, I don't want to overstate the case.  I've already mentioned that healthcare reform and the erosion of First Amendment rights pose a serious threat to the protection of the unborn.  On a deeper level, however, there is a serious moral dilemma which remains unresolved and will prevent any serious victory in the battle to protect innocent life, viz., the failure of the Court to recognize the personhood of the unborn.

A number of months ago, I wrote an article for "The Bell Towers" on this very issue ("Casey, Originalism, and the Personhood of the Unborn").  I encourage everyone to take a gander at what I had to say.  The article is, by no means, comprehensive, but I think it makes some important criticisms of what Justice O'Connor did (or rather, failed to do) when writing the Court's opinion in Casey.

Earlier today, the Witherspoon Institute published a compelling piece by Gerard Bradley, who discusses this same issue, though in greater detail.  I highly recommend taking some time to sit down and consider what Professor Bradley has written.  He makes some especially fine points in his last paragraph:

"...Abortion is not only the great civil rights issue of our time.  It is the greatest human rights tragedy in America's history.  There are now 55 million people dead by lawful abortion since Roe.  That is a hundred times the number of Americans killed in combat during World War II.  That is many millions more than all the persons enslaved in the course of American history.  In abortion, a person is killed outright.  But law is for persons, not the other way around.  Persons are the point of law; law is their servant."

Let us pray that the day is near when the law finally recognizes the personhood of every man, no matter whether he has yet to be born or is reaching the end of his life.  Until then, we may continue to increasingly restrict the practice of abortion, but we'll never be able to reclassify it for what it is -- the murder of an innocent human being.

Donaghy's Admiration of Wonka

Despite the apparent unpopularity of NBC's Thursday night comedy line-up, I remain a huge fan of "The Office," "Parks & Recreation," and "30 Rock."  Tonight, I especially enjoyed the second-to-last episode of the latter.  Next Thursday will be a night of complicated emotions.  It'll be sad to see Liz Lemon and the rest of the gang wrap up TGS, but I recognize that "30 Rock" has outrun its viability as a popular comedy.  Everyone, it seems, has lost interest.

Jack Donaghy is my favorite character.  I'd still watch the show if it only consisted of Alec Baldwin doing monologs!  Donaghy had an especially funny line last night, which inspired me to head straight to a meme generator and cook up a little Internet fun.  Apparently, though, I'm not technically adept enough to post the image...the website won't allow me.  This is the link.  And here is Donaghy's line and a Wonka photo, just for context:

"I do admire Wonka.  He's a true capitalist.  His factory has zero government regulations, slave labor, and an indoor boat.  Wonderful."

Of course, the suggestion that "slave labor" or unbearable working conditions have anything to do with real capitalism is ridiculous.  And as von Mises et al would quickly complain, there has never actually been such a thing as laissez-faire put into practice.  But the part about the indoor boat?  Probably true.  Ah well, even the hardest of libertarians has to be able to laugh at himself, n'est-ce pas?

Justice Scalia Sports Thos. More's Hat

Nearly everyone in law school thinks that Justice Scalia is a curmudgeonly old jurist who has backwards views on just about everything.  And for those students who don't make any special effort in constitutional law to read more than the edited versions of their cases, or to investigate the veracity of the claims of their (frequently) leftist professors, they generally accept that Scalia is just that and more: a racist, a misogynist, and a homophobe.

Curmudgeon or grandfatherly sage?

I have my disagreements with Justice Scalia's interpretive methodology.  On the whole, I agree that textualism is a helpful way of approaching most fields of law.  It is difficult, for example, to divine the intended purpose of legislation.  At the same time, I ardently believe that constitutional interpretation must be grounded in something a little more substantive and normative.  Moral philosophy, despite what Justice Scalia believes, has some place in how we read our Constitution, since the documents ambiguous terms refer to a motivating ideology, and not just concrete historical conceptions of "process," etc.  Scalia and Bork's insistence on ignoring the Ninth Amendment, for example, is unfortunate.

I digress.  Yesterday, at the Presidential Inauguration, the aforementioned Associate Justice sported a striking chapeau.  Apparently, it was a gift from the St. Thomas More Society of Richmond, Virginia.  I say, Bravo!  It is an awesome hat, and has meaning beyond its practical purpose.  (It was rather cold on Monday!)

Over at First Things, Matthew Schmitz called Scalia's headgear a "martyr's cap."  Hmm.  But, of course, he impliedly suggested something even further:

"Wearing the cap of a statesman who defended liberty of church and integrity of Christian conscience to the inauguration of a president whose policies have imperiled both: Make of it what you will."

The humor of readers at "Eye of the Tiber" knows no limits.  The first comment:

"While white is out after labor day, that hat is a hat for all seasons."

Capital Punishment, Retributive Justice, and the Right to Life

This morning my article on the death penalty was published at "The Bell Towers."  Head over there to take a look at what I have to say.  

I started writing the piece back in December, after reading Thomas Friedman's op-ed in the New York Times.  I've found that many commentators on both the Left and the Right advocate for the elimination of the death penalty.  They frequently base their claims on empirical data and the efficacy of deterrence.  My judgment as to the morality of execution is grounded in a deontological morality.  I believe we can (and should) justify punishment for criminals in retribution, viz. based on moral desert.  Of course, consequentialism is useful in "fleshing" out our concerns and aspirations for how a criminal justice system should be designed, etc.  And concerns about deterrence, incapacitation, and rehabilitation may even need to be part of any responsible retributive theory.


The original purpose of the article was to counter the argument that "pro-lifers" need to advocate for the elimination of the death penalty.  As I explain, I don't see these two ethical dilemmas -- abortion and the execution of criminals -- as analogous.  I try to make the case that opposing abortion and supporting the death penalty are not contradictory positions.


Sidebar: I've always been concerned by the perception of many Catholics that the Church teaches the death penalty to be morally and theologically "wrong."  Officially, the Church has not changed its traditional teachings on the matter, though I do believe that there has been a definite change in emphasis.  John Paul II, of blessed memory, argued, for example, that the death penalty was an affront to human dignity.  Yet, despite what many American Catholics think, the Holy Father didn't actually advocate eliminating the practice.  (I have a few problems with Evangelicum Vitae's discussion of capital punishment, some of which I hint at in the "Bell Towers" piece.)


After my friend, Kathleen Hunker, wrote an article about the possible moral objections to executing James Holmes, I scrapped some of what I was doing with my argument and tried to draft something of a response to her claims.  I like what I've written, but I warn you: the article is only cursory and is not meant to be an exhaustive examination of the moral and legal issues implicated in any discussion of the death penalty.  


The article does do a fair job at representing my own position, but I think I could have more heavily emphasized the practical concerns of having the State execute individuals.  As a libertarian, for example, I highly distrust the State.  Indeed, I like to consider myself something of a "philosophical anarchist," although I suppose I'm actually a "minarchist."  I find it hard to accept the idea of completely discarding the criminal justice system.  (Mind you, drastic reform is needed!)  Together with my retributive theory of justice, I'm something of an outlier among libertarians on these topics.


Sidebar #2: Murray Rothbard, in The Ethics of Liberty, did speak of the possibility of a death penalty in an anarcho-capitalist system of competing, voluntary legal orders.  I won't go into his argument here, but he basically conceptualizes the death penalty as being a sort of maximum punishment in certain instances. I agree with Rothbard.  As I try to imply in the article, the prudent use of execution does not require its employment in all cases.  Just because someone is deserving of death, whether morally or legally, does not mean they should be so sentenced.


I find it an entirely "separate" question as to whether the criminal justice system is legitimate, then as to whether we can justify the death penalty.  I end the article with a caveat, which encapsulates my point here: "[W]hen those criteria [for applying the death penalty] have been met, and the State’s justice system has been shown to have acted legitimately and fairly, and we are as certain as is humanly possible that guilt has been demonstrated, then I fail to see any convincing moral or philosophical impediment to carrying out an execution." (emphasis added)  Insofar as the prosecutor, the judge, and the jury -- and any other relevant political institution -- has acted in such way as not to cast doubt on a criminal justice system's legitimacy, i.e., to call into question our legal and moral obligation to obey and abide by its results, than execution can be implemented.