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Archive for the ‘Jurisprudence’ Category

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Anamnesis Journal and Debates Over the New Natural Law

In Arts & Letters, Conservatism, Essays, History, Humanities, Jurisprudence, Law, Liberalism, News and Current Events, News Release, Politics, Religion, Rhetoric, Western Civilization on August 12, 2011 at 4:19 pm

Allen Mendenhall

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).

David Gordon’s review of Robert P. George’s In Defense of Natural Law.  Review title: “New But Not Improved.”  The Mises Review.  Vol. 5, No. 4 (1999).

Larry Arnhart.  “Darwinian Conservatism as the New Natural Law.”  The Good Society, Vol. 12, No. 3 (2003).

The Daily Dish.  “The ‘New’ Natural Law.”  The Atlantic (Dec. 23, 2009).

David D. Kirkpatrick.  “The Conservative-Christian Big Thinker.”  The New York Times Magazine (Dec. 16, 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.

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Excerpt from “Transnational Law: An Essay in Definition with a Polemic Conclusion”

In Arts & Letters, Austrian Economics, Conservatism, Humane Economy, Jurisprudence, Law, Law-and-Literature, Liberalism, Libertarianism, Literary Theory & Criticism, Politics, Pragmatism, Transnational Law on August 3, 2011 at 11:18 am

Allen Mendenhall

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 »

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Conservatives and the Natural Law vs. Positive Law Debate

In American History, Arts & Letters, Conservatism, History, Humanities, Jurisprudence, Law, Legal Education & Pedagogy, News and Current Events, Politics on July 14, 2011 at 5:30 pm

Allen Mendenhall

Three days ago, the Claremont Review of Books posted two interesting reviews on jurisprudence.   The first, “Natural Law Man,” is a reprint of a piece that appeared in the Winter/Spring 2010-11 issue.   Here, Michael M. Uhlmann praises Hadley Arkes’s Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law.  In the second review, “A Plea for Positivism,” Bradley C. S. Watson comments on Gary L. McDowell’s The Language of Law and the Foundations of American Constitutionalism.  (Click here to read McDowell’s discussion of the book with Edwin Meese, III.)  Both reviews situate their subjects alongside conservative theory.  Both books are worth reading. 

The prevailing tendency among some uncritical commentators is to binarize natural law theory and positive law theory as polar opposites.  That’s understandable if the terms “natural law” and “positive law” are reduced to cliché.  But cliché, although helpful to students first getting introduced to concepts, doesn’t do justice to the complexities and challenges of natural law or positive law jurisprudence.  In any event, it is curious that both natural law theorists and positive law theorists claim to have influenced, and to have been influenced by, conservatism.  That fact alone suggests that natural law theory and positive law theory are complicated.  Here are some readings that will complicate the complicated:  Murray Rothbard’s excerpts “Introduction to Natural Law” and “Natural Law versus Positive Law,” F. Russell Hittinger’s short pieces “Natural Law” and “The Rule of Law and Law of Nature,” Robert P. George’s “Witherspoon Lecture,” and Fred Hutchison’s overview “Natural Law and Conservatism.”

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Teaching Bioethics From a Legal Perspective

In Advocacy, Arts & Letters, Bioethics, Communication, Creative Writing, Creativity, Humanities, Jurisprudence, Law, Law-and-Literature, Legal Education & Pedagogy, News and Current Events, Pedagogy, Politics, Rhetoric, Rhetoric & Communication, Teaching, Writing on July 6, 2011 at 8:33 pm

Allen Mendenhall

Last fall, I was assigned to teach a course called “Health & Medicine.”  Because I know little about health or medicine, I was concerned.  The subject of the course was writing, so I decided to craft a syllabus to facilitate classroom discussion and textual argument.  Here is the course description as stated on my syllabus:

Forensic discourse is one of three forms of classical rhetoric as defined by Aristotle.  It focuses on the relationship between language and law.  This semester we will explore forensic discourse in the context of health and medicine and consider the relationship of law to such issues as physician assisted suicide, surrogacy, cloning, informed consent, malpractice, and organ transplants.  Readings on ethics and philosophy will inform the way you think about these issues.

Your grade will not depend on how much you learn about law, but on how you use language to argue about and with law.  Because the facts of any case are rarely clear-cut, you will need to understand both sides of every argument.  Your writing assignments will require you to argue on behalf of both plaintiffs and defendants (or prosecutors and defendants) and to rebut the arguments of opposing counsel.  You will develop different tactics for persuading your audience (judges, attorneys, etc.), and you will become skilled in the art of influence.

During the semester, your class will interview one attorney, one judge, and one justice sitting on the Supreme Court of Alabama.

My students came from mostly nursing and pre-medical backgrounds.  A few were science majors of some kind, and at least two were engineering majors.

The students were also at varying stages in their academic progress: some were freshmen, some were sophomores, two were juniors, and at least one was a senior.  Throughout the semester, I was impressed by students’ ability to extract important issues from dense legal readings and articulate complicated reasoning in nuanced and intelligent ways.

I thought about this “Health & Medicine” class this week when I came across this article published by the Brookings Institution.  The title of the article is “The Problems and Possibilities of Modern Genetics: A Paradigm for Social, Ethical, and Political Analysis.”  The authors are Eric Cohen and Robert P. George.   Cohen is editor of The New Atlantis and an adjunct fellow at the Ethics and Public Policy Center.  George is McCormick Professor of Jurisprudence at Princeton University, the director of the James Madison Program in American Ideals & Institutions, and a fellow at the Hoover Institution.  Read the rest of this entry »

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Nicole N. Aljoe on Legal Discourse and Testimony in Early West Indian Slave Narratives

In Advocacy, American History, Arts & Letters, Civil Procedure, History, Humanities, Jurisprudence, Law, Law-and-Literature, Laws of Slavery, Literary Theory & Criticism, Nineteenth-Century America, Politics, Rhetoric, Slavery, The West Indies on July 5, 2011 at 7:21 pm

Allen Mendenhall

Nicole N. Aljoe has published an intriguing article in Volume 46 (issue no. 2) of Early American Literature (2011), which is published by the University of North Carolina Press.  The article is titled “‘Going to Law’: Legal Discourse and Testimony in Early West Indian Slave Narratives.”  It is available here on Project Muse.  The abstract is below:

Despite the fact that the courts had not proven consistently helpful in their quests for freedom, British West Indian slaves frequently consulted them in order to invoke the rule of law and pursue their rights. Several Caribbean historians have documented the ways in which slaves in the West Indies participated in formal legal arenas almost from the initial days of colonization and claimed the courts as one of their own forums for resolving disputes and asserting those few rights written into the various parliamentary acts intended to ameliorate the conditions of the enslaved and passed in England and its Caribbean colonies from 1788 onward. Indeed, slaves in the West Indies participated in the courts systems as plaintiffs as well as defendants more frequently than previously thought. And although the courts were certainly used by those in power to oppress slaves, women, children, and the poor, as well as to “legitimate [the] blatantly repressive regime” of slavery, they nevertheless provided a forum for those who did not write the laws in question to use the courts to ensure the legal protection of their “natural rights” (Lazarus-Black, “John Grant’s” 154). Thus, in another of the seemingly endless paradoxes inherent to the British imperial slave system, slaves—objects of property, yet human subjects—could, in certain situations, use the courts in the West Indies and in England on their own behalf, as legal agents to affirm their status as legal subjects deserving of the law’s unbiased protection, and judgment.

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Transnational Law: An Essay in Definition with a Polemic Addendum

In Arts & Letters, Austrian Economics, Economics, Humane Economy, Humanities, Jurisprudence, Law, Law-and-Literature, Libertarianism, Literary Theory & Criticism, Rhetoric & Communication, Transnational Law on May 24, 2011 at 8:56 pm

Allen Mendenhall

The Libertarian Alliance (London, U.K.) has published my article “Transnational Law: An Essay in Definition with a Polemic Addendum.”  View the article here, or download it from SSRN by clicking here.  I have pasted the abstract below:

What is transnational law? Various procedures and theories have emanated from this slippery signifier, but in general academics and legal practitioners who use the term have settled on certain common meanings for it. My purpose in this article is not to disrupt but to clarify these meanings by turning to literary theory and criticism that regularly address transnationality. Cultural and postcolonial studies are the particular strains of literary theory and criticism to which I will attend. To review “transnational law,” examining its literary inertia and significations, is the objective of this article, which does not purport to settle the matter of denotation. Rather, this article is an essay in definition, a quest for etymological precision. Its take on transnationalism will rely not so much on works of literature (novels, plays, poems, drama, and so forth) but on works of literary theory and criticism. It will reference literary critics as wide-ranging as George Orwell, Kenneth Burke, and Edward Said. It will explore the “trans” prefix as a supplantation of the “post” prefix. The first section of this article, “Nationalism,” will examine the concept of nationalism that transnationalism replaced. A proper understanding of transnational law is not possible without a look at its most prominent antecedent. The first section, then, will not explore what transnationalism is; it will explore what transnationalism is not. The second section, “Transnationalism,” will piece together the assemblages of thought comprising transnationalist studies. This section will then narrow the subject of transnationalism to transnational law. Here I will attempt to squeeze several broad themes and ideals into comprehensible explanations, hopefully without oversimplifying; here also I will tighten our understanding of transitional law into something of a definition. Having tentatively defined transnational law, I will, in section three, “Against the New Imperialism,” address some critiques of capitalism by those cultural critics who celebrate the transnational turn in global law and politics. Although I share these critics’ enthusiasm for transnational law, I see capitalism – another hazy construct that will require further clarification – as a good thing, not as a repressive ideology that serves the wants and needs of the hegemonic or elite.

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Outline and Summary of Thomas D. Morris, Southern Slavery and the Law: 1619-1860 (Chapel Hill and London: University of North Carolina Press, 1996).

In American History, Arts & Letters, Book Reviews, History, Jurisprudence, Law, Laws of Slavery, Legal Education & Pedagogy, Nineteenth-Century America, Politics, Slavery, Western Civilization on April 20, 2011 at 4:23 pm

Allen Mendenhall

Introduction

The introduction serves as a brief historiographical essay that situates Morris’s text alongside other prominent texts and authors in the field.  Morris uses the introduction to familiarize readers with, among other things, the differences between common law and courts of equity, the differences between civil and criminal law, and other relevant information such as the fact that statutes in England and America are mostly products of the nineteenth century.  Morris believes that slavery reinforced English racism in that the English were predisposed to view Africans as inferior and so used the law to categorize racial difference and justify slave property.  Morris suggests that experts can skip most of his introduction probably because the introduction is, as I have suggested, a piece about historiography rather than a history in itself. 

PART ONE

Sources: Racial and Legal

Chapter One: The Function of Race in Southern Slave Law

Popular science maintained that blacks were inferior, and this understanding was reflected in law.  Indians were not enslaved as often or in the same numbers as blacks.  The presumptions and definitions of “slave” had to do with blackness; therefore, the legal status of mulattoes was often in flux.  Law had to define people by race and then determine their free or slave status afterwards.  Several Southern states adopted laws allowing free blacks to sell themselves as slaves.

Chapter Two: The Sources of Southern Slave Law

Some Southern slave law derived from Roman law; some derived from English common law.  The origins of Southern slave law are traceable to at least Virginia.  The degree to which Virginia followed or revised the common law is debatable.  In early Virginia, many blacks were treated as indentured servants, not slaves.  Not until the mid-seventeenth century did blacks become routinely associated with slavery.  There is little evidence to suggest that Virginians had a sophisticated understanding of ancient Roman or other European legal traditions.  A child’s status as free or slave followed the mother under the judicial principle of partus sequitur ventrem.  The traditional common law rule was that the child’s status followed the father.  Some appellate courts tried to link their opinions to the precedents of civil law or the Roman law on slavery.  Some judges analogized slavery to English villenage.  The roots of slavery in Hebraic tradition and Biblical literature had an enormous influence among nineteenth-century Southern whites. Read the rest of this entry »

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Law and the Ordinary, by Alexandre Lefebvre

In Arts & Letters, Communication, Jurisprudence, Law-and-Literature, Literary Theory & Criticism, News and Current Events, Politics, Rhetoric, Rhetoric & Communication, Writing on April 13, 2011 at 10:32 pm

Allen Mendenhall

One of my favorite journals, Telos, has published an essay that might interest readers of this site.  The essay, by Alexandre Lefebvre, is titled “Law and the Ordinary: Hart, Wittgenstein, Jurisprudence.”  Here is the abstract:

This essay argues that H. L. A. Hart’s concept of jurisprudence in the first chapter of The Concept of Law is strongly influenced by the relationship that Wittgenstein establishes between ordinary and metaphysical language. The article is divided into three sections. The first section shows how jurisprudence emerges as a denial of ordinary language in its pursuit of a definition of law. The second section traces Hart’s use of ordinary language to identify idleness or emptiness in jurisprudence. The third section presents Hart’s conception of his work as therapeutic in its attempt to lead jurisprudence back to the everyday.

Telos is one of the few literary-theoretical journals that regularly challenges the critical and political orthodoxy that pits itself, ironically, as the unorthodox, progressive, or transgressive.

Indeed, Telos seriously considers repressed, unpopular, and unapproved thoughts and theories. It complicates “conservative” and “liberal” as meaningful categories of discourse.

Having published such controversial authors as Paul Gottfried, Clyde Wilson, Alain de Benoist and others who situate themselves on the right-wing of the political spectrum, Telos is committed to contemplation and speculation, to profound and difficult ideas and not fashionable or typical recitations of mainstream opinions.

The journal has a long history of interrogating and revising critical theory and critiquing culture and society, and it continues to publish notable scholarship in traditions both left and right, although the signifiers left and right are not useful starting points from which to analyze anything that appears in this journal.

Paul Piconne was the founder and long-term editor of Telos.  Piconne died in 2004.  Today the editor is Russell A. Berman.  The only publication as daring and interesting as Telos is Counterpunch, a political newsletter and not an academic journal.  I urge readers of this site to read both Telos and Counterpunch as often and as closely as possible.

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Jurisprudence: East vs. West or East and West?

In Arts & Letters, Communication, E.M. Forster, Eastern Civilizaton, Islamic Law, Jurisprudence, Legal Education & Pedagogy, Literary Theory & Criticism, Pedagogy, Politics, Rhetoric, Rhetoric & Communication, Western Civilization, Writing on December 29, 2010 at 6:53 pm

Allen Mendenhall

Today in the Malaysia Star, Shad Saleem Faruqi published “In law, West is not really best,” an article arguing that the fundamental paradigms of legal pedagogy in Malaysia remain Western.  Faruqi laments this fact and declares that despite years of experimentation, legal education “today is as much a colonial construct as it was during the days of the raj.”  Read the rest of this entry »

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The Oft-Ignored Mr. Turton: The Role of District Collector in A Passage to India

In Arts & Letters, Austrian Economics, E.M. Forster, Jurisprudence, Law-and-Literature, Legal Education & Pedagogy, Libertarianism, Literary Theory & Criticism, Politics, Religion, Writing on December 23, 2010 at 2:43 pm

Allen Mendenhall

Click here to read my latest law-and-literature article.  Below is the abstract for the article, which appears in Libertarian Papers:

E.M. Forster’s A Passage to India presents Brahman Hindu jurisprudence as an alternative to British rule of law, a utilitarian jurisprudence that hinges on mercantilism, central planning, and imperialism.  Building on John Hasnas’s critiques of rule of law and Murray Rothbard’s critiques of Benthamite utilitarianism, this essay argues that Forster’s depictions of Brahman Hindu in the novel endorse polycentric legal systems.  Mr. Turton is the local district collector whose job is to pander to both British and Indian interests; positioned as such, Turton is a site for critique and comparison.  Forster uses Turton to show that Brahman Hindu jurisprudence is fair and more effective than British bureaucratic administration.  Forster’s depictions of Brahman Hindu are not verisimilar, and Brahman Hindu does not recommend a particular jurisprudence.  But Forster appropriates Brahman Hindu for aesthetic and political purposes and in so doing advocates a jurisprudence that does not reduce all experience to mathematical calculation.  Forster writes against the Benthamite utilitarianism adopted by most colonial administrators in India.  A tough figure to pin down politically, Forster celebrates the individual and personal relations: things that British rule of law seeks to suppress.