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Is Ocasio-Cortez Right About Rights?

In America, American History, Arts & Letters, Books, Christianity, Civics, Conservatism, History, Humanities, liberal arts, Liberalism, Philosophy, Politics, Western Civilization, Western Philosophy on August 29, 2018 at 8:45 am

This article originally appeared here in The Intercollegiate Review. 

Colin I. Bradford writes fawningly that Alexandria Ocasio-Cortez, a member of the Democratic Socialists of America, reaffirms “the centrality of the individual, individual rights, liberty, and freedom in which respect, trust, fairness and responsibility loom large.” He depicts Ocasio-Cortez as the embodied union of individualism and collectivism, someone who, in his words, “sees the individual as both a solitary being with certain inalienable rights and as a citizen and member of society.”

There’s much to unpack in Bradford’s frightfully grand statements, but let’s briefly consider some historical context for them.

“Modern Western ‘democracies,’” says John W. Danford, “are actually better described as liberal commercial societies. They rest on principles of individualism and individual rights—especially legal rights—which are more fundamental than democracy, and also much newer.”

Individual Rights Came from Christianity

The belief that humans by their nature possess “rights” against which governments may not transgress has not always been commonly held. Larry Siedentop’s Inventing the Individual: The Origins of Western Liberalism (2014) made the compelling case that natural rights theories are distinctively Christian in origin. He presents the ancient pagans as tribal and patriarchal, characterized by fierce loyalty to kin and clan and lacking conscientious differentiations between public and private life. (The operative differentiation was between public and domestic life.) Inequality was accepted as a given; the notion of rights was practically nonexistent. What mattered was the family unit: secure lineage, child bearing, and glorification of the paterfamilias as the powerful hero. Cities emerged from familial corporate associations around which property relations were structured according to class hierarchies.

Correlated with the rise and spread of Christianity in the West was the proliferation of the concept of the individual as a rights-bearing creature with inherent dignity, which any legal order properly so called must recognize and protect. The teachings of Jesus Christ and St. Paul redirected political thought away from the material, phenomenal world and toward the afterlife, eternity, and the soul. The message that grace through Christ was available to anyone, not just rulers or the highborn, underscored the autonomy of the individual, the self-aware subject. A Christian emphasis on personal moral agency and responsibility, moreover, undercut Greek and Roman aristocratic culture and its attendant traditions of ancestor worship.

Siedentop contends, therefore, that Christianity, not the Renaissance, was the fountain of individualism. If the Enlightenment was the height of philosophizing about the relationship of the individual to society, then it was also the natural outflow of earlier eras shaped by Christianity. This narrative runs counter to the portrayal of medieval Christianity as closed and authoritarian and of the Enlightenment as predominately secular. It illuminates Danford’s description of modern liberal societies as fundamentally committed to individual rights embedded in the law.

Mutual Submission, Similar Ethics

A distinguishing feature of Enlightenment thinking was social contract theory, which is particularly important to the Anglo-American legal tradition as manifest in Magna Carta (1215), the English Bill of Rights (1689), the Virginia Declaration of Rights (1776), the Declaration of Independence (1776), and the U.S. Bill of Rights (1789–91). These documents enshrine the principles of equality under the law, basic human dignity, rule of law, consent of the governed, popular sovereignty, and natural rights.

The most celebrated delineations of social contract theory belong to Hobbes, Locke, and Rousseau. A simplistically synthesized account of their three hypothetical origins of political society runs like this: humans once existed as free agents in an ungoverned state of nature and eventually banded together in protective social units to enforce claims to property and defend against outside threats; voluntarily entering into these social units required individuals to give up unfettered liberty by consenting to the authority of a superintending body—a government— that exercised only those powers to which the individuals in the society corporately assented, either expressly or impliedly.

The social contract for a mature, successful society involves a collection of individuals wise enough to appreciate the reciprocal advantage of mutual submission and similar enough in ethics and morals to prescribe the proper scope, limits, and structure of the approved ruling authority. The U.S. Constitution, in theory, represents a social contract: a pact between citizens and its rulers that restrains government, divides power, and sets competing interests against one another with offsetting effect.

U.S. Supreme Court “Expansions”

The U.S. Supreme Court, in cases regarding the Fourteenth Amendment, began in the twentieth century to evaluate claims of unremunerated, allegedly fundamental rights in light of the history of judicial safeguards. A purported right was deemed presumptively fundamental if it enjoyed an established tradition of formal recognition by Anglo-American courts. Under this interpretive scheme, when the Supreme Court determined that an alleged right was nonfundamental, the alleged right would not be incorporated (via the doctrine of substantive due process) to apply against the states. The Supreme Court, however, gradually recognized particular suspect rights within broader categories of long-established rights. The so-called right to privacy, for example, that had valid antecedents in the common law was repurposed to include phenomena unknown at the common law.

The tendency of the Supreme Court in the twentieth century to expand (and, in some cases, to limit) the scope of alleged rights reveals, I think, that a privileged group of robed lawyers are inadequately equipped to philosophize about rights. The validity of alleged rights accrues socially, from the bottom up, when they can be traced over time to long-standing, if not immemorial, usage, customs, mores, and traditions, and when their practical applications have been tested by successive generations. Certain rights are natural, that is, prior to government promulgation, but their intelligibility is deeply historical, rooted, contextual, situational, and embedded.

Rights or Privileges?

One could argue, and Siedentop suggests, that Christianity’s institutionalization of rights discourse created the conditions necessary for secularization, in effect that Christianity ushered in a culture that led to its gradual removal from civic society. Siedentop postulates, in other words, that the success of Christianity eventuated its demise in the Western public sphere. The story of rights discourse in U.S. Supreme Court decisions lends credence to this perspective, revealing that prevailing notions of rights have grown to encompass what were once merely privileges.

If institutions follow culture, however, then a constitution that contemplates individual rights is only as good as the people it controls: a populace without extensive virtue will weaken or decline regardless of its organizational governance and administrative framework. Christianity may not have promoted ideas that caused its erasure from our governing institutions; rather, the people of the United States may have drifted away from the Christian ideas that made those institutions effective and stable.

Bradford recognizes that “individualist values of liberty, property rights, freedom and sovereignty worked well in the 20th century as the foundations of competition, free markets, democracy and the nation state.” Yet he sees these concepts as inadequate today, lacking something he believes Ocasio-Cortez can supply, to wit, a form of collectivism that in his representation facilitates community and social harmony. He simply fails to see that the unique individualism that emerged out of Christianity generated the community and social harmony he now desires.

There is no individualism absent the recognition that every human life, anywhere and everywhere, is precious and important. It follows from that premise that no one may violate the rights of others who themselves have not violated another’s rights. This principle, extended to society writ large, creates the conditions necessary for community to flourish. Individualism in Christian societies aided the growth of cities, institutionalized the dignity of the human person as a bearer of rights, and challenged rather than empowered abusive government. Ocasio-Cortez should not hope to eradicate this kind of individualism, for it has accomplished more good for humanity than the socialism she purportedly embraces.

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Session Sixteen: Richard Bulliet on the History of the World

In Academia, Arts & Letters, Christianity, Historicism, History, Humanities, liberal arts, Western Civilization, Western Philosophy on January 31, 2018 at 6:45 am

Here, in the sixteenth lecture of his course, The History of the World, Richard Bulliet discusses the Emergence of Christian Europe (600-1200 C.E.):

Session Fifteen: Richard Bulliet on the History of the World

In Academia, Arts & Letters, Christianity, Humanities, Teaching, Western Civilization, Western Philosophy on January 24, 2018 at 6:45 am

Here, in the fifteenth lecture of his course, The History of the World, Richard Bulliet discusses the Emergence of Christian Europe (600-1200 C.E.):

Judge Andrew Napolitano’s 2017 Commencement Address at Faulkner University Thomas Goode Jones School of Law

In Academia, Arts & Letters, Christianity, History, Humanities, Jurisprudence, Justice, Law, Law School, liberal arts, Libertarianism, Philosophy on December 5, 2017 at 6:45 am

Protestant Legal Theory: Apology & Objections

In Arts & Letters, Christianity, Humanities, Law, Religion, Scholarship, Teaching, Western Civilization on November 1, 2017 at 6:45 am

Session Twelve: Richard Bulliet on the History of the World

In Arts & Letters, Christianity, Eastern Civilizaton, Historicism, History, Humanities, Islamic Law, Pedagogy, Western Civilization on September 20, 2017 at 6:45 am

Here, in the twelfth lecture of his course, The History of the World, Richard Bulliet discusses the Rise of Islam (600-1200 C.E.):

The Antiwar Tradition in American Letters

In American History, American Literature, Arts & Letters, Book Reviews, Books, Christianity, Conservatism, Essays, Fiction, History, Humanities, Literary Theory & Criticism, Literature, Politics, Religion, Rhetoric, Writing on October 12, 2016 at 6:45 am

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This review originally appeared here at Antiwar.com.

A review of War No More: Three Centuries of American Antiwar and Peace Writing.  Lawrence Rosenwald, editor.  New York: The Library of America, 2016.  838 pgs.

James Carroll, the novelist and Christian man of letters who has won numerous accolades over a long, distinguished career, sets the tone for this fine edition, War No More, in his short foreword.  “Wars,” he says, “have defined the nation’s narrative, especially once the apocalyptic fratricide of the Civil War set the current running in blood – toward the Jim Crow reenslavement of African Americans, further genocidal assaults against native peoples, imperial adventures abroad, a two-phased World War that permanently militarized the American economy and spawned a bifurcated imagination that so requires an evil enemy that the Cold War morphed seamlessly into the War on Terror.”

We’ve seen editions like this before – We Who Dared to Say No to War, edited by Murray Polner and Thomas E. Woods Jr. comes to mind – but the focus here is different and decidedly literary.  Lawrence Rosenwald, the editor, believes the “antiwar impulse” requires a rich “vocabulary” that’s “visionary, sensual, prophetic, outraged, introspective, self-doubting, fantastic, irreverent, witty, obscene, uncertain, heartbroken” – in short, that signals a range of human emotions and experiences.  Rosenwald promises that “[a]ll of those traits are on display here,” and follows through with essays and memoirs by Ralph Waldo Emerson, Henry David Thoreau, Kurt Vonnegut, Edmund Wilson, and, among others, Norman Mailer.

Rosenwald has also achieved a diversity of genre. He includes poems by Henry Wadsworth Longfellow, Stephen Crane, Adrienne Rich, Herman Melville, Robert Bly, Sara Teasdale, Edna St. Vincent Millay, George Starbuck, and Walt Whitman; short stories by Ray Bradbury and Ambrose Bierce; a genre-defying piece by Mark Twain (“The War Prayer”); songs by Country Joe McDonald, Ed McCurdy, and Pete Seeger and Joe Hickerson; a statement before a federal grand jury; letters and an interview; a gospel song (“Down by the River-Side”); a leaflet on the Vietnam War (the conflict with the most permeating presence in the book); excerpts of the prefatory articles of the Constitution of the Iroquois Confederacy; and more.

Women as a class are underrepresented in Rosenwald’s selections.  I count 104 men and 35 women among the contributors.  Are there fewer women involved in the antiwar movement throughout American history?  Or did Rosenwald ignore females because of his preference for particular writers and writings?  We may never know because he does not address the gender disparity.  If antiwar writers are, in fact, disproportionally male, then further study of that curious fact – or at least some speculation about it – seems warranted.

Multiple traditions merge in these pages:  John Woolman, Benjamin Rush, and Reinhold Niebuhr speak as Christians; Eugene V. Debs, Jane Addams, Arturo Giovannitti, and Howard Zinn as proxies for the Left; and Andrew Bacevich as a representative of the Right.  Figures like Randolph Bourne cut across trite political labels.  And writers associated with certain styles and forms demonstrate their versatility with other kinds of writing.  For instance, Robert Lowell, known for his poetry, shows his mastery of the epistolary form in his letter to President Franklin D. Roosevelt.

Rosenwald proves to be far more astute than Jonah Goldberg in his assessment of William James’s “The Moral Equivalent of War.” Whereas Rosenwald submits that this essay is “intended as oppositional” to war, Goldberg, a senior editor at National Review, treats it as fascist and accuses it of presenting “militarism as a social philosophy” that was not only “a pragmatic expedient” but also the basis for “a workable and sensible model for achieving desirable ends.”  Of course, Goldberg has been wrong before.

Given that Rosenwald purports to have featured the writing of “pacifists,” the inclusion of John Kerry and Barack Obama is deplorable.  True, Kerry’s statement against the Vietnam War is notable as a work of peace activism, but Kerry also voted in 2002 to authorize President Bush’s use of force to disarm Saddam Hussein, advocated U.S. military involvement in Syria, and appears at least partially responsible for the US backing of Saudi-led bombings in Yemen.

If opposition to the Vietnam War is now the measure of pacifism, then most Americans today are pacifists, there being, as of the year 2000, just 30% of Americans who believe that that war was not a mistake, according to a Gallup poll. Thus, Kerry is hardly unique in such opposition. Nicholson Baker, in his energetic essay for this volume, seems more attuned than Rosenwald to Kerry’s foreign-policy prescriptions, castigating Kerry for inciting military involvement in Gaddafi’s Libya.

President Obama, for his part, has overseen regular bombings throughout the Middle East, including in Pakistan, Yemen, Iraq, and Somalia; ordered US military intervention in Libya; increased US troop levels in Afghanistan and escalated US military operations there; and urged Americans to support US military involvement in Syria. These positions are ironic in light of his warning, in his piece in this collection, against traveling “blindly” down “that hellish path” to war.

Rosenwald’s brief, personal introductions (he recalls hearing James Baldwin speak in the Cathedral of St. John the Divine in New York, for instance, and mentions a tribute he wrote for Daniel Berrigan) to each chapter engender an autobiographical feel. One senses that this book represents a patchwork of accumulated memories, that Rosenwald has recounted and repurposed old reading experiences for present political needs. Inviting Carroll to pen the foreword, moreover, was entirely appropriate and wise.  As this review opened with Carroll’s eloquent words, so it closes with them.

“Because the human future, for the first time in history, is itself imperiled by the ancient impulse to respond to violence with violence,” Carroll intones, “the cry ‘war no more!’ can be heard coming back at us from time ahead, from the as yet unborn men and women – the ultimate voices of peace – who simply will not come into existence if the essential American soul does not change.”  But all is not lost; Carroll remains optimistic.  “The voices of this book, a replying chorus of hope,” he says, “insist that such change is possible.”

A Brief Conversion Narrative

In American Literature, Arts & Letters, Christianity, Essays, Writing on September 7, 2016 at 6:45 am

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The conversion narrative is an important genre in American history, one that played an indispensable role in the formation of our cultural and religious identity during the seventeenth century and the First Great Awakening.  The genre as a practiced form hardly exists today, although its iterations are evident whenever a Christian states his or her “testimony.”

Allow me to share mine.  The conversion narratives of two eighteenth-century American writers in many ways reflect my own Christian experience.

John Woolman, a Quaker, recorded his narrative in a series of journal entries.  As a young boy, Woolman intuited the existence of good and evil and felt the manifest presence of a superintending God in his everyday experience.  He learned of his own propensity for wickedness and felt shame and remorse whenever he sinned.  He came to believe in the teachings of Jesus Christ, through Whom he found love and repentance.  The teenaged Woolman, however, gradually abandoned his pious obedience to God.

“Having attained the age of sixteen years,” Woolman laments in his narrative, “I began to love wanton company, and though I was preserved from profane language or scandalous conduct, still I perceived a plant in me which produced much wild grapes.”  Only through God’s grace was Woolman saved from his backsliding and led back to the path of truth and repentance.

When Woolman began to backslide yet again, God visited sickness upon him.  “I was filled,” Woolman writes, “with confusion, and in great affliction both of mind and body I lay and bewailed myself.  I had not confidence to lift up my cries to God, whom I had thus offended, but in a deep sense of my great folly I was humbled before him, and at length that Word which is as a fire and a hammer broke and dissolved my rebellious heart.  And then my cries were put up in contrition, and in the multitude of his mercies I found inward relief, and felt a close engagement that if he was pleased to restore my health, I might walk humbly before him.”

Jonathan Edwards, a New England Calvinist and one of the last prominent American Puritan ministers, wrote what he styled a “Personal Narrative,” which opens with an account of his boyhood inclination for religious matters.  The young Edwards experienced an “awakening” in his father’s congregation.  “I was then very much affected for many months,” he says in his account, “and concerned about the things of religion, and my soul’s salvation; and was abundant in duties. I used to pray five times a day in secret, and to spend much time in religious talk with other boys, and used to meet with them to pray together.”  The power of God energized the exuberant, young Edwards.  “I experienced I know not what kind of delight in religion,” Edwards intones about these early years.

Like Woolman, however, Edwards began to backslide as he grew older.  “But in the process of time,” he says, “my convictions and affections wore off; and I entirely lost all those affections and delights and left off secret prayer, at least as to any constant performance of it; and returned like a dog to his vomit, and went on in the ways of sin.”  Also like Woolman, Edwards was struck with illness, pleurisy, which riled him with inner conflict and compulsive introspection.  Edwards emerged from his illness both healthier and spiritually rejuvenated.  Although still immature in his faith, he “felt a spirit to part with all things in the world, for an interest in Christ.”

My grandmother led me to believe in Jesus Christ as my Lord and Savior when I was in the third grade.  She instilled in me an understanding of God’s grace and an equally important fear of his divine judgment.  As I grew older, I, like Woolman and Edwards, suffered from my own forms of backsliding.  I fell into the company of other boys who were not interested in religious matters.  During my freshman year of high school, my appendix ruptured, and I nearly died after waiting two days to visit the hospital.  At this time, fear for my life and the state of my eternal soul caused me to consult scripture and to pray to God with a renewed sense of urgency.

I was for a few years devout once again, attendant to God’s teachings and careful with my thoughts and actions.  Still I found myself in college—and the immediate years thereafter—drifting from God’s teachings even as I acknowledged their authority and believed that departure from them was sinful.  I delighted in Bacchanalian parties and festivities of a degree I can only imagine to have been comparable to those described by Augustine in reference to his own youth.  My immersion in unholy and rambunctious activity was so complete that I continue to struggle to witness to others, afraid they may discount my message in light of my past sins.

It was not until law school, when I was diagnosed with melanoma and treated with major surgery, including the removal of two lymph nodes, that I truly turned back to God, but even then the process of regeneration involved backsliding and psychological intensity.

Since my marriage and the birth of my two children, I have sought after the Lord with more discipline and seriousness.  I have matured in Christ and seek daily to understand the scriptures and God’s nature.  I have learned that sanctification is a complex process that requires correction and tenacity, and I have found joy in my relationships with other believers and in the awesomeness and enormity of life itself.  Like everyone, I am susceptible to certain sins.  But I believe in the power of God’s saving grace, and, after much study and prayer, attempt to exercise the ability he has provided me to overcome my inherent limitations and innate propensity for sin.

Boswell Gets His Due

In Arts & Letters, Book Reviews, Books, British Literature, Christianity, History, Humanities, Literary Theory & Criticism, Literature, Scholarship, Western Civilization, Writing on August 19, 2015 at 8:45 am

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This review originally appeared here in Liberty.

What is Enlightenment? The title of Immanuel Kant’s most famous essay asks that question. Kant suggests that the historical Enlightenment was mankind’s release from his self-incurred tutelage, an intellectual awakening that opened up new freedoms by challenging implanted prejudices and ingrained presuppositions. “Sapere aude!” Kant declared. “Dare to be wise!”

Tradition maintains that the Enlightenment was an 18th-century social and cultural phenomenon emanating from Paris salons, an Age of Reason that championed the primacy of the individual, the individual’s competence to pursue knowledge through rational and empirical methods, through skepticism and the scientific method. Discourse, debate, experimentation, and economic liberalism would liberate society from the shackles of superstition and dogma and enable unlimited progress and technological innovation, offering fresh insights into the universal laws that governed not only the natural world but also human relations. They would also enable individual people to attain fresh insights into themselves.

Boswell was a garrulous charmer with Bacchanalian tendencies, and a fussy hypochondriac raised Calvinist and forever anxious, perhaps obsessive, about the uncertain state of his eternal soul.

Robert Zaretsky, a history professor at the University of Houston and the author of Boswell’s Enlightenment, spares us tiresome critiques or defenses of the Enlightenment by Foucault and Habermas and their progeny. He begins his biography of James Boswell, the great 18th-century biographer, with a historiographical essay on the trends and trajectories of the pertinent scholarship. He points out that the Enlightenment may have begun earlier than people once believed, and in England rather than France. He mentions Jonathan Israel’s suggestion that we look to Spinoza and company, not Voltaire and company, to understand the Enlightenment, and that too much work has focused on the influence of affluent thinkers, excluding lower-class proselytizers who spread the message of liberty with a fearsome frankness and fervor. And he maintains that Scotland was the ideational epicenter of Enlightenment. Boswell was a Scot.

All of this is academic backdrop and illustrative posturing, a setting of the stage for Zaretsky’s subject, Boswell, a lawyer and man of letters with an impressive pedigree and a nervous disposition, a garrulous charmer with Bacchanalian tendencies, and a fussy hypochondriac raised Calvinist and forever anxious, perhaps obsessive, about the uncertain state of his eternal soul. He marveled at public executions, which he attended regularly. He also had daddy issues, always trying to please his unpleased father, Lord Auchinleck, who instructed his son to pursue the law rather than the theater and thespians. When word arrived that his son had been sharing his private journals with the public, Lord Auchinleck threatened to disown the young James.

Astounded by the beauty and splendor of Rome and entranced by Catholicism, Boswell was never able to untangle the disparate religious influences (all of them Christian) that he picked up during his travels. He was equally unable to suppress eros and consequently caught sexual diseases as a frog catches flies.

Although the Life of Johnson is always considered one of the most important books in the language, Boswell himself has been relegated to the second or third tier of the British literary canon.

Geography and culture shaped Boswell’s ideas and personality and frame Zaretsky’s narrative. “With the European continent to one side, Edinburgh to the other,” Zaretsky intones, “James Boswell stood above what seemed the one and the same phenomenon: the Enlightenment.” This remark is both figurative and literal, concluding Zaretsky’s account of Boswell’s climbing of Arthur’s Seat, a summit overlooking Edinburgh, and his triumphant shout, “Voltaire, Rousseau, immortal names!”

Immortal names indeed. But would Boswell himself achieve immortality? Boswell achieved fame for his biography of Samuel Johnson, the poet, critic, essayist, and wit — who except for one chapter is oddly ancillary to Zaretsky’s narrative. Although the Life of Johnson is always considered one of the most important books in the language, Boswell himself has been relegated to the second or third tier of the British literary canon and treated, poor chap, as a celebrity-seeking minor figure who specialized in the life of a major figure. If Dr. Johnson is Batman, Boswell is a hobnobbing, flattering Robin.

Boswell’s friends have fared better — countrymen and mentors such as Adam Smith and David Hume, for instance, and the continental luminaries Voltaire and Rousseau. But there are many interesting relationships here. To cite only one: Thérèse Levasseur, Rousseau’s wife or mistress (a topic of debate), became Boswell’s lover as he accompanied her from Paris to England. The unsuspecting Rousseau, exiled in England, waited eagerly for her arrival, while a more astute Hume, who was Rousseau’s host, recognized matters for what they were.

Zaretsky believes Boswell was an exceptional talent, notwithstanding his weaknesses, and certainly worthy of our attention. Glossing several periods of Boswell’s life but closely examining his grand tour of the Continent (1763–1765), Zaretsky elevates Boswell’s station, repairs Boswell’s literary reputation, and corrects a longstanding underestimation, calling attention to his complicated and curious relationship to the Enlightenment, a movement or milieu that engulfed him without necessarily defining him.

The title of the book assumes plural meaning: Boswell attained a self-enlightenment that reflected the ethos and ethic of his era.

Zaretsky’s large claims for his subject might seem belied by the author’s professedly modest goal: “to place Boswell’s tour of the Continent, and situate the churn of his mind, against the intellectual and political backdrop of the Enlightenment.” To this end, Zaretsky remarks, “James Boswell and the Enlightenment are as complex as the coils of wynds and streets forming the old town of Edinburgh.” And so they are, as Zaretsky makes manifest in ten digestible chapters bristling with the animated, ambulatory prose of the old style of literary and historical criticism, the kind that English professors disdain but educated readers enjoy and appreciate.

Zaretsky marshals his evidence from Boswell’s meticulously detailed missives and journals, piecing together a fluid tale of adventure (meetings with the exiled libertine John Wilkes, evenings with prostitutes, debauchery across Europe, and lots of drinking) and resultant misadventure (aimlessness, dishonor, bouts of gonorrhea and depression, and religious angst). Zaretsky portrays Boswell as a habitual performer, a genteel, polite, and proud socialite who judged himself as he imagined others to have judged him. He suffered from melancholy and the clap, among other things, but he also cultivated a gentlemanly air and pursued knowledge for its own sake. The title of the book, Boswell’s Enlightenment, assumes plural meaning: Boswell attained a self-enlightenment that reflected the ethos and ethic of his era.

Zaretsky’s book matters because Boswell matters, and, in Zaretsky’s words, “Boswell matters not because his mind was as original or creative as the men and women he pursued, but because his struggle to make sense of his life, to bend his person to certain philosophical ends, appeals to our own needs and sensibilities.” We see ourselves in Boswell, in his alternating states of faith and doubt, devotion and reason. He, like so many of us, sought to improve himself daily but could never live up to his own expectations. He’s likeable because he’s fallible, a pious sinner who did right in the name of wrong and wrong in the name of right, but without any ill intent. A neurotic, rotten mess, he couldn’t control his libido and didn’t learn from his mistakes. But he could write like the wind, and we’re better off because he did. He knew all of us, strangely, without having known us. God help us, we’re all like him in some way.

The American Founders and Natural Law Jurisprudence

In America, American History, American Literature, Arts & Letters, Books, Britain, Christianity, Historicism, History, Humanities, Jurisprudence, Law, Laws of Slavery, Liberalism, Literature, Philosophy, Slavery, Southern History, Thomas Jefferson, Western Civilization, Western Philosophy on April 9, 2014 at 8:45 am

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The American founders, many of them, validated their political cause and secession from Britain by resorting to natural law theories and paradigms.[i] Thomas Jefferson memorialized these theories and paradigms in the Declaration of Independence.[ii] While studying nature and the physical world, Jefferson extended natural law jurisprudence while revising it to fit the needs and settings of the New World.[iii] Rather than looking to divine or moral prescription to ground his natural law theories, Jefferson looked to nature. He borrowed from Newtonian ideas about the laws of the universe and applied them to the laws of man.[iv] A human law was, by this logic, akin to the law of gravity.

The American insistence on natural law was a reaction to the analytical positivism gaining credence in Britain.[v] This school of jurisprudence found its fullest expression in the utilitarianism of Jeremy Bentham and John Austin. These men treated laws as linguistic constructs: commands that attained the status of law because people followed them, not because they reflected a priori or transcendent rules of the cosmos. American founders such as Jefferson saw natural law as a way to distinguish themselves from their British counterparts and to define what it meant to be American. William Blackstone, one of the few British jurists still clinging to natural law principles,[vi] enjoyed vast success from American purchases of Commentaries on the Laws of England.[vii] The popularity of this treatise in America had to do with Blackstone’s support for ideals that, from the colonials’ perspective, affirmed Revolutionary rhetoric and philosophical principles.[viii] Blackstone died in 1780. His death ushered in the age of positive law jurisprudence in England.[ix]

In America, however, natural law picked up momentum in the wake of the Revolution and American independence.[x] That ideas of natural law flourished during the Enlightenment, especially in America where institutions were supposed to reflect—indeed embody—Enlightenment principles, is curious because the Enlightenment glorified reason and humanism: progressive concepts seemingly incongruous with a moral theory derived from ancient church teachings and philosophical orthodoxies. This disjuncture reveals the extent to which colonials sought to divorce their culture and communities from the British. Á la Blackstone, colonials would go great lengths to “prove” their natural law theories through application of the scientific method and appeals to reason.[xi] Natural law jurisprudence did, in fact, fit within a scientific and rational framework in many important respects. For instance, natural law, like laws of the natural world putatively discoverable by reason, logic, and experiment, were by definition universal. Just as truths about the external world allegedly were deduced through sustained study of specimens and species, so truths about the human condition were, natural theorists argued, deduced through sustained study of human behavior and the history of the races.[xii] In this sense, colonial jurists viewed natural law not as retrograde, superstitious, or religious, but as cutting-edge and scientific. Americans were not alone in their attention to the scientific elements of law. In Western and Central Europe during the mid-to-late eighteenth century, rulers and leaders “sought to rationalize their legal systems, to make law scientific, to extend it in a vernacular language evenly over their territories, and to put an end to the earlier jumble of customs, privileges, and local rights.”[xiii] Save for Blackstone’s efforts, however, this scientific trend did not gain much traction in England.[xiv]

Early Americans, particularly northerners[xv] but also Virginians such as Jefferson and George Mason, celebrated the ideals of natural law and natural rights appearing in the Declaration, but they found those ideals difficult to implement in everyday practice. Although staunchly committed to the principles of natural law, the colonials, at least those with representation or voice in the political sphere, discovered that abstract philosophy did not readily translate into workaday rules and regulations.[xvi] “It was one thing,” submits David Brion Davis, “to state abstract propositions, and quite another to decide how the law applied to a particular case.”[xvii] Above all, the “peculiar institution” of American slavery called into question the Enlightenment values upon which American natural law jurisprudence depended. Cries of freedom and liberty rang hollow once Americans were no longer up against an oppressive British Empire. These cries began to sound hypocritical—if they did not seem so already—as the institution of slavery became a mainstay of the economy of the fledgling nation.[xviii] How could colonists extol freedom, liberty, and equality yet enslave masses of people? This American philosophical “inconsistency pinched harder when slaves began to speak the language of natural rights.”[xix] As Samuel Johnson, the eminent British Tory and man of letters, quipped, “How is it that we hear the loudest yelps for liberty among the drivers of negroes?”[xx]

 

NOTES

[i] “The American Revolution, as it ran its course from 1764 to 1776—from the first beginnings of resistance down to the Declaration of Independence and the creation of new colonial constitutions—was inspired by the doctrines of Natural Law.” Ernest Baker, in Natural Law and the Theory of Society: 1500-1800, ed. Otto Gierke (Cambridge, England: Cambridge University Press, 1934) at I, xlvi. See generally Clarence Manion, “The Natural Law Philosophy of the Founding Fathers,” University of Notre Dame Natural Law Institute Proceedings (Notre Dame, Indiana: University of Notre Dame Press, 1949). See also Raymond Whiting, “The American Interpretation of Natural Law,” A Natural Right to Die: Twenty-Three Centuries of Debate (Westport, CT: Greenwood Press, 2002) 109-118.

[ii] “[T]he argument of the Declaration is a subtle, if ambiguous, blending of empirical historical analysis and the metaphysics of Natural Law. To prove its central contention—that the revolution was made necessary by British policies—the document enumerates twenty-seven specific events in recent history which reveal precisely how Britain acted to establish despotism. […] But the revolutionaries meant to transcend arguments of expediency, for such arguments were always subject to the vicissitudes of opinion and opinion might lead one to conclude that a revolution was in fact unnecessary and therefore unjustifiable. To remove their claims from the arena of opinion and to ground them with certainty, the revolutionaries felt constrained to found the argument for justification on the principle of Natural Rights which was rooted in the theory of Natural Law as applied to politics and society. Thus the grievances enumerated in the Declaration, weighty in themselves for some readers, were for others concrete examples of how one nation attempted to subordinate another to an ‘absolute despotism.’ The grievances, taken together, demonstrated that British policies had violated the fundamental principles of Natural Law itself.” Lester H. Cohen, “The American Revolution and Natural Law Theory,” Journal of the History of Ideas, Vol. 39, No. 3 (1978) at 491-92.

[iii] See generally Allen Mendenhall, “Jefferson’s ‘Laws of Nature’: Newtonian Influence and the Dual Valence of Jurisprudence and Science,” Canadian Journal of Law and Jurisprudence, Vol. 23, No. 2 (2010).

[iv] See generally Mendenhall, “Jefferson’s Laws of Nature.”

[v] See generally David Lieberman, “Mapping criminal law: Blackstone and the categories of English jurisprudence,” in Law, Crime and English Society, 1660-1830, ed. Norma Landau(Cambridge, England: Cambridge University Press, 2002 ) at 159-162. See also David Brion Davis, The Problem of Slavery in the Age of Revolution, 1770-1823 (Ithaca and London: Cornell University Press, 1975) at 343-385. Davis explains this English phenomenon as follows: “In England there was no ‘fundamental shift in values’ that mobilized the society into revolution. There was no counterpart to the American need for self-justification. No new hopes or obligations arose from an attempt to build a virtuous republic. Such phrases as ‘created equal,’ ‘inalienable rights,’ and ‘the pursuit of happiness’—all of which appeared in classic liberal texts—were qualified by a reverent constitutionalism that looked to Saxon precedent to legitimize ideals of freedom. The notion of man’s inherent rights, when assimilated to the historical concept of British ‘liberty,’ implied little challenge to traditional laws and authorities. And by the 1790s the very idea of inherent rights was giving way to radical and conservative forms Utilitarianism.” Davis, The Problem of Slavery in the Age of Revolution at 343.

[vi] In short, Blackstone believed that the common law reflected natural law principles and that any law contradicting natural law was invalid. Consider, e.g., the following quotation: “This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding all over the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original. […] Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these.” Sir William Blackstone, Commentaries on the Laws of England, Book I at 41-42.

[vii] See Russell Kirk, America’s British Culture (New Brunswick, New Jersey: Transaction Publishers, 1993) 36-40.

[viii] See Albert W. Alschuler, “Rediscovering Blackstone,” 145 University of Pennsylvania L. Rev. (1996) at 4-19. See also David Schultz, “Political Theory and Legal History: Conflicting Depictions of Property in the American Political Founding,” 37 American Journal of Legal History (1993) at 483-486.

[ix] The jurisprudential split between Blackstone and Bentham, while stark, was not as hostile as some first considered: “Until recently Bentham’s claim to have made a sharp break with Blackstone has won wide acceptance, and that fact, combined with Bentham’s ascendancy, was chiefly responsible for consigning Blackstone to obscurity. […] No doubt this outcome resulted in part from Bentham’s mastery of invective, and in part from the fact that the elderly Blackstone did not deign to notice the attacks of an upstart critic, much less reply to them. Even the strongest partisans of Bentham have conceded that much of his criticism directed at Blackstone was misplaced[…]. In spite of Bentham’s efforts, most historians of the relationship have acknowledged that Bentham, despite his implacable hostility, combined relentless criticism with passages of praise that became as famous as some of his barbs.” Richard A. Cosgrove, Scholars of the Law: English Jurisprudence from Blackstone to Hart (New York University Press, 1996) at 52.

[x] See generally George W. Casey, “Natural Rights, Equality, and the Declaration of Independence,” 3 Ave Maria Law Review 45 (2005). See also Philip A. Hamburger, “Natural Rights, Natural Law, and American Constitutions,” 102 Yale Law Journal 907 (1993). See also James Lanshe, “Morality and the Rule of Law in American Jurisprudence,” 11 Rutgers Journal of Law & Religion 1 (2009) at 11-15. See also Kevin F. Ryan, “We Hold These Truths,” 31-WTR Vermont Bar Journal 9 (2005-06) at 11-16.

[xi] “[Blackstone] presented law as a science, a ‘rational science,’ that included an extensive discussion of natural law. To Blackstone, the principles of natural law are universal and superior to positive law, including the common law. […] Natural law, according to Blackstone, is either revealed by God or discoverable through human reason. […] American jurisprudents readily accepted Blackstone’s natural law orientation. […] [N]atural law provided a convenient and useful justification for the adoption of English common law in the various states of the burgeoning nation. Especially in the decades following soon after the Revolutionary War, if the common law had been understood merely as an English institution distinctive to Britain itself, then an American reliance on the common law would have seemed impolitic or even treasonous. If, however, the common law arose from universal principles of the law of nature, which were revealed by God or discovered through human reason, then the common law would be legitimate everywhere, including in America.” Stephen M. Feldman, “From Premodern to Modern American Jurisprudence: The Onset of Positivism,” 50 Vanderbilt Law Review 1387 (1997) at 1396-97.

[xii] Thomas R. R. Cobb, a jurist from Georgia and an expert on slave laws, took pains to show how science validated the idea of slaves as naturally inferior and in need of white supervision. Consider this quote by Cobb: “The history of the negro race then confirms the conclusion to which an inquiry into the negro character had brought us: that a state of bondage, so far from doing violence to the law of his nature, develops and perfects it; and that, in that state, he enjoys the greatest amount of happiness, and arrives at the greatest degree of perfection of which his nature is capable. And, consequently, that negro slaver, as it exists in the United States, is not contrary to the law of nature.” Thomas R. R. Cobb, An Inquiry into the Law of Negro Slavery in the United States of America (Philadelphia: T. & J. W. Johnson & Co., 1858) at 51.

[xiii] Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815 (Oxford University Press, 2009) at 403.

[xiv] Ibid. at 403-404.

[xv] “Southerners considered themselves law-abiding and considered northerners lawless. After all, southerners did not assert higher-law doctrines and broad interpretations of the Constitution. Rather, as Charles S. Sydnor has argued, they understood the law in a much different way and professed to see no contradiction between their code of honor, with its appeal to extralegal personal force, and a respect for the law itself.” Eugene Genovese, Roll, Jordan, Roll (New York: Pantheon Books, 1974) at 44.

[xvi] See Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815 (Oxford University Press, 2009) at 405-408.

[xvii] David Brion Davis, The Problem of Slavery in the Age of Revolution (Ithaca and London: Cornell University Press, 1975) at 470.

[xviii] See generally David Brion Davis, The Problem of Slavery in Western Culture (Ithaca, New York: Cornell University Press, 1966) at 3-28. For a synthesis of the historical scholarship on this point, see Peter Kolchin, American Slavery, 1619-1877 (New York: Hill and Wang, 1993) at 63-92.

[xix] David Brion Davis, The Problem of Slavery in the Age of Revolution (Ithaca and London: Cornell University Press, 1975) at 276.

[xx] See James Boswell, The Life of Samuel Johnson, LL.D. (New York: George Dearborn, 1833) at 132.

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