Tomorrow marks a preview of The Comedy of Errors, directed by Drew Reeves and performed at the New American Shakespeare Tavern in Atlanta. Performances begin on September 3 and last through September 11, with additional performances on September 17, September 23, September 29, and October 2. View show information here.
I wrote the following piece about three weeks ago, while I was vacationing in Destin, Florida, with my family.
If we expect others to rely on our fairness and justice we must show that we rely on their fairness and justice.
—Calvin Coolidge
My wife and I are on vacation in Florida. Yesterday morning, over a cup of coffee and a doughnut, sitting on the balcony and reading the newspaper amid sounds of seagulls and the grating roll of morning waves, I noted that one Michael Stone—a blind man, XTERRA champion, and 10-time Ironman triathlete who recently published a book, Eye Envy—will speak at the University of North Florida on August 13. I haven’t read Stone’s book, but it’s apparently a resource not only for those suffering from vision-loss any degenerative disease.
Stone began to lose his sight in 2004. His blindness is a result of a rare disease called cone-rod dystrophy. Despite his handicap, he has accomplished amazing things, but not without the help of others. During races, he relies on guides, who shout directions and warnings to him.
I’ll never understand why God makes some people handicapped and others not, why some must rely on others, and some must be relied on. Someday and for a time, everyone relies on someone or something and is relied on by someone or something. Read the rest of this entry »
The following post appeared here at The Literary Table.
Lately I’ve been reading a subject of interest to the lawyers, theologians, writers, and philosophers at the table: pragmatism. (Pragmatism finds a way of encompassing any interest whatsoever.) The following discussion is brief and does not do justice to the nuances of my subject: Ruth Anna Putnam’s essay “The Moral Impulse” (in The Revival of Pragmatism, Morris Dickstein, ed., Duke University Press, 1999). Nevertheless, I proceed with eyes wide open.
Putnam opens by referencing William James’s pragmatist metaphysics and its reliance upon feelings and the sensorial to get at the religious or moral. This reference provides Putnam wide latitude to articulate her arresting point that people participate in moral value systems because they always retain agency even if their actions seem like products of habit. People do not act in putatively moral ways simply because they are conditioned or determined to do so; they act in those ways because they want to do so. The want is the moral impulse. That one should act or think on an impulse does not evacuate that action or thought of all intelligence. “It is not,” Putnam assures us, “to say that one does not have or has not given intellectually compelling reasons for that position” (63). In fact, as James himself suggests, we may—notice he does not say ought to or must—entertain any moral impulses so long as they lead us toward critical currents of thought that have not been invalidated even if they have not been validated. Using such Jamesian refrains as her starting-point and hesitating over the usefulness of a now catch-all signifier like “pragmatism,”[1] Putnam announces her intention to explore moral beliefs in the work of James and Dewey. Her focus is on those moments of convergence and departure, with slightly more emphasis on the departure. Without touching on all Putnam’s arguments about James and Dewey and their agreements and disagreements, I will here note one of Putnam’s more sustained and striking observations, which addresses the difference between James’s and Dewey’s moral values: the difference which, it turns out, is at the heart of her essay.
Having shown that James sees the question of free will in terms of determinacy and indeterminacy without essentializing that binary opposition, and having shown that Dewey rejects James’s position as a dualism that is fundamentally flawed, Putnam resorts to James’s position to lump Dewey into a determinist camp and James into a free will camp (which does not seem the same as an indeterminacy camp, but I will not get into that). Putnam then resorts to Dewey’s position by implicitly allowing that these polarized categories will not do; for she suggests that Dewey questioned the amount of personal agency a person could achieve in a world that, in light of quantum physics, does not seem deterministic (64). At any rate, her point in playfully adopting both a Jamesian and Deweyian perspective at once seems to be that despite the seeming differences between them, James and Dewey both “understand that morally significant choices express who we are and shape who we will be,” and that “this relation between character and conduct leaves room for choice, for moral growth or deterioration, even for dramatic reversals” (64). The human mind makes deliberate choices based on evaluative criteria gained by experience in the tangible world. That, I suspect, is a statement with which James and Dewey and I daresay even Putnam would agree. Read the rest of this entry »
Konrad Graf, who, with me, contributes to Prometheus Unbound: A Libertarian Review of Fiction and Literature, has published the following essay in Libertarian Papers: “Action-Based Jurisprudence: Praxeological Legal Theory in Relation to Economic Theory, Ethics, and Legal Practice.” Here is the abstract to the piece:
Action-based legal theory is a discrete branch of praxeology and the basis of an emerging school of jurisprudence related to, but distinct from, natural law. Legal theory and economic theory share content that is part of praxeology itself: the action axiom, the a priori of argumentation, universalizable property theory, and counterfactual-deductive methodology. Praxeological property-norm justification is separate from the strictly ethical “ought” question of selecting ends in an action context. Examples of action-based jurisprudence are found in existing “Austro-libertarian” literature. Legal theory and legal practice must remain distinct and work closely together if justice is to be found in real cases. Legal theorizing was shaped in religious ethical contexts, which contributed to confused field boundaries between law and ethics. The carrot and stick influence of rulers on theorists has distorted conventional economics and jurisprudence in particular directions over the course of centuries. An action-based approach is relatively immune to such sources of distortion in its methods and conclusions, but has tended historically to be marginalized from conventional institutions for this same reason.
This piece is striking for a number of reasons, not least of which is the way it came about. As the Mises Economics Blog explains,
This is an interesting, provocative analysis of libertarian theory that highlights the strength of the Mises Institute’s approach and model of openness. First, this piece was inspired by the author’s participating in a Mises Academy course.
Second, the author is not a professional scholar or academic. In days past such authors–who are often the source of new ideas–would be shut out by credentialism and the iron grip certain institutions had over the few avenues of publication. The open model of the Mises Institute’s Libertarian Papers–rigorously double-blind peer-reviewed but open to private scholars as well as academics, as its focus is on ideas–breaks free of this hidebound model.
Third, the article is 75 pages long, much longer than many journals can accept. But this is no problem for the Libertarian Papers model as it is online, not centered on paper.
To sum up, this provocative piece was stimulated by the Mises Institute’s being on the forefront of technology (Mises Academy), not to mention the gargantuan volume of free, online resource such authors are able to draw on (Mises.org), and then was offered a publishing platform (Libertarian Papers) despite its length and the author’s private, “non-credentialed” status. In my view, this is all to the good and a testament to the heroic work done by the Mises Institute.
Libertarian Papers is edited by Stephan Kinsella. Visit Kinsella’s website here. Visit Mises Academy (which inspired Graf’s article) by clicking here.
Over at the web-essay section of Anamnesis: A Journal for the Study of Tradition, Place, and ‘Things Divine,’ Professors R. J. Snell and Thaddeus J. Kozinski have weighed in on debates over the New Natural Law theory.
Here is Snell’s thesis:
Despite differences in particular religious commitments, a significant number of theists share reservations about the natural law. Natural law theory overlooks the Fall, arrogates the domain of revelation, attempts obligation without divine command, and treats God in the generic and thus in terms alien to the believer—just some of the many objections.In this short essay I offer a broad defense against these charges, particularly claiming that understanding natural law through human subjectivity recognizes how humans actually know and so consequently preserves the uniqueness and transcendence of God.
Appealing to authorities within the religious tradition may go some distance in answering objections, for theology and sacred text tends to vindicate the natural lawyers, especially if the religion has a doctrine of creation. But the charges may have particular traction against the so-called New Natural Law Theory (NNL), with its first-person perspective. As Christopher O. Tollefsen explains, the NNL takes seriously “considerations concerning the nature of human action,” particularly intentions as “agent-centered, or first-personal … from the point of view of the agent as seeking some good.” It is, he continues, “only by adopting the perspective of the acting person that an agent’s action can be best understood.”
Here is Kozinski’s thesis:
I commend R.J. Snell for his excellent essay “God, Religion, and the New Natural Law.” His thesis: “understanding natural law through human subjectivity recognizes how humans actually know and so consequently preserves the uniqueness and transcendence of God” is defended rigorously, and is, to my mind, true. However, in allying his argument with those of the New Natural Law school, I think he does himself a disservice.There is nothing in his thesis in terms of data, premises, argumentation, and conclusions that requires such an alliance, for everything he claims about the indispensable role and even primacy of subjectivity, experience, understanding, and judgment in ethical inquiry and practice rings true on its own and is clearly in accordance with the philosophia perennis in general and Thomistic ethical philosophy in particular. Whereas, the major claim of the New Natural Theory, that is, the adequacy of practical reason alone to ground and explain ethical theory and practice, does not ring true and is in, at least prima facie, contradiction with traditional Catholic and Thomistic moral philosophy and theology.
Though I agree with Dr. Snell that the modern and postmodern “turn to the subject” is the most appropriate beginning to inquiry about the natural law, and maybe the most effective motivation for obeying it, in our present public milieu of deep worldview pluralism, it is only a beginning. Moreover, even a sound, systematic Thomistic defense of the relative self-sufficiency of practical reason for knowing and living out the natural law can be misleading if it neglects to include a discussion of these four realities: 1) the mutually dependent relation of speculative and practical reason; 2) the subjectivity-shaping role of social practices; 3) the tradition-constituted-and-constitutive character of practical rationality; and 4) the indispensability of divine revelation in ethical inquiry and practice.
These essays are good introductions to the New Natural Law Theory. For more about this branch of jurisprudence, see the following web-based essays and articles (some of them approving of natural law and some of them critical):
Joseph W. Koterski, S.J. “On the New Natural Law Theory.” Modern Age (2000: 415-418).
Phillip E. Johnson. “In Defense of Natural Law.” First Things (1999).
Christopher Tollefsen. “The New Natural Law Theory.” LYCEUM, Vol. X, No. 1 (2008).
The Daily Dish. “The ‘New’ Natural Law.” The Atlantic (Dec. 23, 2009).
“The Gospel of Life: A Symposium.” First Things (1995).
This list is hardly exhaustive. It shows only a few scholarly and popular pieces. No discussion of natural law theory should fail to mention John Finnis and Robert P. George, whose books and articles are well-known and oft-discussed. Anamnesis, edited by Peter Haworth, is sure to come out with more compelling pieces related to topics discussed here at The Literary Lawyer. Please read Anamnesis and, if you feel so inclined, leave a comment in the “comments” section of the web-based fora.
There’s an essay by Abraham Cowley, the seventeenth-century poet, called “Westminster Abbey,” that’s so strikingly relevant that it reads as if it were written lately, perhaps by a man like Russell Kirk. The speaker muses about his stroll through the great cathedral. He remarks that the gloominess of the place, the solemnity of the building, and the condition of the people who lie in it would seem to fill the mind with melancholy and thoughtfulness.
Having spent the previous afternoon meditating in the churchyard and cloisters, amusing himself, he claims, with tombstones and inscriptions, he now considers the grave as a strange register of experience, a satire upon the dead. “Most of them,” he says of the tombstones and inscriptions, “recorded nothing else of the buried person, but that he was born upon one day, and died upon another: the whole history of his life being comprehended in those two circumstances, that are common to all mankind.”
Reduced to the facts of birth and life, as though nothing took place in between, the departed human reminds one of the permanent things, which find their most magnificent expression because of impermanence and death.
Cowley’s essay seems relevant because death is always with us, always relevant. The contemplation of death, Cowley suggests, raises dark and dismal thoughts in timorous minds. But to those who, like the speaker, take a broad view of nature in her deep and solemn scenes—who improve themselves on thoughts that others consider with terror—the contemplation of death is humbling and awesome, revealing as it does the vanity of grief.
As the speaker entertains himself by digging a grave, he considers “what innumerable multitudes of people lay confused together under the pavement of that ancient cathedral; how men and women, friends and enemies, priests and soldiers, monks and prebendaries, were crumbled amongst one another, and blended together in the same common mass; how beauty, strength, and youth, with old age, weakness and deformity, lay undistinguished in the same promiscuous heap of matter.”
These bodies, imagined or seen, allow the speaker to feel an intimacy with death: an intimacy that ultimately leads him to reflect “with sorrow and astonishment on the little competitions, factions and debates of makind.”
“When I read,” the speaker declares, “the several dates of the tombs, of some that died yesterday, and some six hundred years ago, I consider that great day when we shall all of us be contemporaries, and make our appearance together.”
These words are only more resonant in light of the distance between us and Cowley, the some three-hundred-forty-four years that separate his death from the present. What was real and existent for Cowley is not even memory for us. We have memories of memories, and words recalling memories that we fill with our own experience. But we don’t have the moments themselves. We can’t have those back.
A few months ago, the Libertarian Alliance, a London-based think tank, published my paper on transnational law. Below is an excerpt from that paper. The piece is available for download through SSRN by clicking here, or on the website of the Libertarian Alliance by clicking here.
In 1957, reviewing Philip Jessup’s Transnational Law, James N. Hyde wrote that “[t]ransnational law is not likely to become a term of art for a new body of law.”25 Mr. Hyde was wrong. There has been a proliferation of relatively new law journals bearing “transnational law” in their titles: Transnational Law & Contemporary Problems: A Journal of the University of Iowa College of Law, Ashburn Institute Transnational Law Journal, Journal of Transnational Law & Policy, Vanderbilt Journal of Transnational Law, Transnational Law Review, and Columbia Journal of Transnational Law. There are LLM programs in transnational law (such as the one I am in), and there are even institutes and think-tanks devoted to the study and development of transnational law. Transnational law has in fact become the term of art for a new body of law, and here we will consider the nature and meaning of this term as well as the corpus of law it has created. It is perhaps not coincidental that the emergence of transnational law coincided with transnational poetics26 and other transnational trends in literary criticism because the legal and literary fields always seem responsive to one another.
One of the earliest references, if not the earliest reference, to the concept of transnationalism comes from the pragmatist philosopher and student of John Dewey: Randolph Bourne. Bourne’s use of the term “transnational” recalls William James’s notion of religious pluralism as non-absolute and non-monist.27 Bourne appears to have revised and extended James’s pragmatism to fit the political instead of the religious or philosophical context, although James himself came close to addressing the former context in “A Pluralistic Universe.” Bourne’s essay “Trans-National America” regarded transnationalism as a cousin of cultural pluralism, the notion that differences in belief across cultures and communities may not be equally valid but can be at least equally practical. Against essentialism, monism, and absolutism, Bourne posits a consequentialist system of polycentrism that regards multiplicity as positive and collectivism as dangerous. Society can and should be multiple and heterogeneous, not single and homogeneous, for a one-size-fits-all polis can only materialize through the stamping out of minority views and through the erasing of distinct, regional cultures. Put another way, Bourne transforms James’s varieties of religious experience28 into varieties of political experience.
Kenneth Burke, a literary critic, sometime student of pragmatism, and Marxist converted into a non-“ism” altogether, argued later in his life that ideology and fanaticism – by which he meant “the effort to impose one doctrine of motives abruptly upon a world composed of many different motivational situations”29 – were destructive missions incompatible with pluralism or democracy. Burke, who remained naively critical of the free market, nevertheless refused ideologies as simplifying what cannot be simplified: human behavior. What Burke did not realize is that free market theories, especially those of the Austrian variety, are not deterministic: they refuse to pigeonhole people or to reduce them to economic calculations; they treat humans as unpredictable and spontaneous and celebrate the sheer variety of human behavior. My point in referencing Burke is not to systematically demolish his economic preferences but to suggest that his wide-ranging theories have positive implications for our understanding of transnationalism. One could argue that Bourne and Burke were the earliest expositors of transnationalist theories tied to the practical world and that Jessup and others merely repackaged Bourne and Burke’s dicta. Regardless of whether Jessup either read or credited Bourne and Burke, the theories emanating from these two literary critics would have been in circulation at Jessup’s moment in history. Jessup, widely read as he was, probably would have encountered Bourne and Burke’s transnationalism directly or indirectly. Read the rest of this entry »
A loyal reader of this site has suggested that I post a link to this article about 10 leaders in legal education. I’m happy to do so. I’m curious what other readers think of the list.
Although I’ve posted the list below, I encourage readers to click on the link above to see why these leaders were chosen.
1. Massachusetts School of Law, Andover
4. Association of American Law Schools
6. David Lat
7. George Leef
8. Susan Sturm and Lani Guinier
9. Bryan Garner
10. Stephen R. Marsh
The latest issue of Academic Questions (Summer 2011: Vol. 24, No. 2) devotes most of its content to legal education. Published by the National Association of Scholars, Academic Questions often features theme issues and invites scholars from across the disciplines to comment on particular concerns about the professoriate. (Full disclosure: I am a member of the NAS.) Carol Iannone, editor at large, titles her introduction to the issue “Law School and Other Tyrannies,” and writes that “[w]hat is happening in the law schools has everything to do with the damage and depredation that we see in the legal system at large.” She adds that the contributors to this issue “may not agree on all particulars, but they tell us that all is not well, that law school education is outrageously expensive, heavily politicized, and utterly saturated with ‘diversity’ mania.” What’s more, Iannone submits, law school “fails to provide any grounding in sound legal doctrine, or any moral or ethical basis from which to understand principles of law in debate today.” These are strong words. But are they accurate? I would say yes and no.
Law school education is too expensive, but its costs seem to have risen alongside the costs of university education in general. Whether any university or postgraduate education should cost what it costs today is another matter altogether.
There is little doubt that law schools are “heavily politicized,” as even a cursory glance at the articles in “specialized” law journals would suggest. These journals address anything from gender and race to transnational law and human rights.
But how can law be taught without politicizing? Unlike literature, which does not always immediately implicate politics, law bears a direct relation to politics, or at least to political choices. The problem is not the political topics of legal scholarship and pedagogy so much as it is the lack of sophistication with which these topics are addressed. The problem is that many law professors lack a broad historical perspective and are unable to contextualize their interests within the wider university curriculum or against the subtle trends of intellectual history.
In law journals devoted to gender and feminism, or law journals considered left-wing, you will rarely find articles written by individuals with the intelligence or learning of Judith Butler, Camille Paglia, or Eve Sedgwick. Say what you will about them, these figures are well-read and historically informed. Their writings and theories go far beyond infantile movement politics and everyday partisan advocacy. Read the rest of this entry »
The Literary Lawyer: A Forum for the Legal and Literary Communities 