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Archive for the ‘Justice’ Category

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An Issue of Supreme Importance for 2016

In America, Conservatism, Judicial Activism, Judicial Restraint, Jurisprudence, Justice, Law, News and Current Events, Politics, The Supreme Court on April 22, 2015 at 8:45 am

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This piece originally appeared here in The American Spectator.

The time has come for politicians to announce their candidacy for president. In the following weeks we can expect more names to be tossed into the hat of presidential hopefuls. Already Senator Ted Cruz and Senator Rand Paul have proclaimed their desire to lead our country. Hillary Clinton made her candidacy official Sunday, and Senator Marco Rubio announced on Monday night.

The 2016 election is shaping up to be the most pivotal in decades, including for reasons not everyone is talking about.

It’s true that Republicans will challenge Obama’s legacy and that everything from Obamacare to payday loans will receive renewed and energetic scrutiny on the campaign trail.

Yet these won’t be the most pressing domestic issues facing the next president. Even more important will be the president’s judicial philosophy. That’s because the probability is high that the nation’s next chief executive administration will nominate at least three candidates to the U.S. Supreme Court.

Although confidence in the Court is at an all-time low, voters do not seem particularly concerned about the Court’s future composition. Perhaps the typical voter does not understand the role the president plays in nominating justices. Perhaps the goings-on of the judicial branch seem distant and aloof and out of the purview of our everyday worries. Perhaps most people are too short-sighted to consider the long-term and far-reaching effects that a president can have on the legal system. Whatever the reason, voters should re-prioritize. Conservatives should move this issue to the forefront of the debates.

When the president is inaugurated in January 2017, Justice Ruth Bader Ginsburg, widely thought to be in poor health, will be two months shy of her 84th birthday; Justice Antonin Scalia and Justice Anthony Kennedy will be 80; and Justice Stephen Breyer will be 78. Is it reasonable to expect these justices to serve out four more years under another administration?

Justice Ginsburg and Justice Breyer are considered members of the left wing of the Court whereas Justice Scalia is considered to be on the right. Justice Kennedy is famously known as the Court’s “swing vote.”

If a Republican wins in 2016 election, he could replace two liberal members of the Court, leaving just two other remaining: Justice Sonia Sotomayor and Justice Elena Kagan. If Justice Kennedy were also to step down during the next administration, a Republican president could further expand the conservative wing of the Court to seven, making room for a vast majority in contentious cases. If the right wing of the Court enjoyed a 7-2 majority today, for instance, there would be less media speculation about how the Court would decide cases on same-sex marriage, religious freedom, immigration, or campaign finance.

The Senate Judiciary Committee, which conducts hearings on presidential nominees to the High Court, currently consists of 11 Republicans and 9 Democrats. Republicans hold a 54-member majority in the Senate, the governing body that confirms presidential nominees to the Court. If these numbers remain unchanged or only slightly changed under a Republican president, that president would have wide latitude to nominate candidates who have tested and principled commitments to conservatism.

Let’s say the presidential election favored a Democrat. A Democratic president could simply replace the departing Justice Ginsburg or Justice Breyer with a jurist in their mold, in effect filling a liberal seat with another liberal. If a Democratic president were up against a Republican Senate, however, his or her nominees would have to appear less liberal than Justice Ginsburg to ensure their confirmation.

Replacing Justice Scalia, arguably the most conservative justice on the Court, with a liberal would be transformative. Although depicted as an unpredictable moderate, Justice Kennedy was nominated by a Republican and more often than not votes with the right wing of the Court. Replacing him with a liberal justice would be a victory for the left. It is possible for the left wing of the Court to gain a 6-3 majority if a Democrat succeeds President Obama.

It’s not inconceivable that in the time he last left, President Obama could name at least one successor to the Court. Barring some unforeseen illness or act of God, however, that is unlikely to happen this late in his presidency. Justice Ginsburg insists on remaining on the Court, and Justice Breyer still has some healthy, productive years ahead of him.

Judges’ and justices’ judicial philosophies are not easily pressed into two sides—conservative or liberal, Republican or Democrat—because law itself usually is not reducible to raw politics or naked partisanship, and a judge’s job entails more than interpreting the language of legislative enactments. Law deals with the complex interactions of people and institutions under disputed circumstances that are portrayed and recounted from different perspectives; therefore, law rarely fits cleanly within simplistic political frameworks.

For this reason, among others, it can be difficult to predict how potential justices will rule from the bench if they are installed on the Court. Chief Justice Earl Warren ushered in the progressive “Warren Court Era” even though he had served as the Republican Governor of California and, in 1948, as the vice-presidential running mate of presidential candidate Thomas E. Dewey. More recently President George H.W. Bush nominated Justice David Souter to the Court. Justice Souter tended to vote consistently with the liberal members of the Court.

The Senate confirmation process has grown more contentious in recent years, and that has made it more difficult for another Souter to slip by the president. But it has also watered down our nominees, whose lack of a paper trail is considered a benefit rather than evidence of a lack of conviction or philosophical knowledge (lawyers are trained, not educated). It has come to a point where if you’re confirmable, you’re not reliable, and if you’re reliable, you’re not confirmable. Chief Justice John Roberts’ acrobatic attempt to uphold the individual mandate in Obamacare on the ground that it was a “tax” reveals just how squishy and unpredictable our justices have become.

There is, of course, the trouble with categorizing: What does it mean to be a “conservative” or a “liberal” judge or justice? Our presidential candidates may have different answers. In January Senator Paul declared himself a “judicial activist,” a label that is gaining favor among libertarians. He appears to have backed away from that position, recently bemoaning “out-of-control, unelected federal judges.” Activist judges, at any rate, can be on the right or the left.

Ted Cruz has not advertised his judicial philosophy yet, but by doing so he could set himself apart because of his vast legal experience, including his service as the Solicitor General of Texas. Two potential presidential nominees, Marco Rubio and Lindsey Graham, are also attorneys, but Rubio’s legal experience, or non-experience, is subject to question, and Graham has been out of the legal field for some time—although he serves on the Senate Judiciary Committee and has intimate knowledge of the Senate confirmation prospects for potential nominees.

It matters a great deal what our presidential candidates believe about the hermeneutics and jurisprudence embraced by potential Supreme Court justices. In the coming months voters will have the power to force candidates to address their judicial philosophy. The candidates must articulate clearly, thoroughly, and honestly what qualities they admire in judges because those qualities might just shape the nation’s political landscape for decades to come.

Conservatives have much to lose or gain this election in terms of the judiciary. Supreme Court nominations should be a top priority for Republicans when debate season arrives.
Read more at http://spectator.org/articles/62383/issue-supreme-importance-2016

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Causation and Criminal Law

In America, Criminal Law, Humanities, Jurisprudence, Justice, Law, Philosophy on October 29, 2014 at 8:45 am

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Actus reus, which is shorthand for the opening words in the Latin phrase actus non facit reum nisi mens sit rea (“an act does not make a person guilty unless his mind is also guilty”), is one element of a crime that a prosecutor must prove to establish criminal liability. A prosecutor must prove, in particular, that the defendant’s actus reus caused the harmful result at issue in the case. To do so, the prosecutor must show not only that the act was the “actual cause” of the harm (i.e., the “factual cause” or the “but for” cause”) but also that the act was the “proximate cause” of the harm (i.e., the “legal cause”).

The so-called “but for” test, also known as the sine qua non test, seeks to determine whether a particular act brought about the particular harm to the alleged victim. If the question whether the harm would not have happened but for the defendant’s action is answered in the affirmative, then causation is established; accordingly, if the harm would have happened notwithstanding the defendant’s act, then the defendant’s act is not a “cause in fact.” The “but for” test is not satisfied unless the prosecutor can show that the harm was foreseeable; if the harm was not foreseeable, then the defendant cannot be said to be the actual cause of the harm, only the proximate cause of the harm.

Determining causation is difficult when two people are performing different acts at different times, and each of their acts could have caused the harm at the time the harm occurred. The two acts by the two different people constitute concurrent sufficient causes under the “but for” test. Because there are two different people who could have “caused” the harm according to the “but for” test, yet only one of the two people actually caused the harm, the “but for” test fails to establish causation.

There are two tests that courts may apply when there are multiple sufficient causes under the facts. The first is the substantial factor test, according to which a defendant is criminally liable if his acts are shown to be a substantial factor leading to the harm to the alleged victim. This test is not commonly used because it can be arbitrary and subjective. The better test is a modified form of the “but for” test, formulated this way: “But for the defendant’s voluntary act, the harm would not have occurred not just when it did, but as it did.” Even this revised test falls short of ideal. For instance, it is not clear how this test is applied when two non-lethal acts combine to cause the death of one victim.

Regardless of which tests for causation obtain or prevail in a particular case, a prosecutor must establish each element of a crime beyond a reasonable doubt. That standard, at least, is a legal certainty.

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The Felony-Murder Rule: Background and Justification

In American History, Britain, Criminal Law, History, Humanities, Jurisprudence, Justice, Law, Oliver Wendell Holmes Jr., Philosophy on October 8, 2014 at 8:45 am

Allen 2

The rule at common law as incorporated into the legal system of the early United States was that a person is guilty of murder (and not some lesser offense of killing) if he killed another person during the commission or attempted commission of any felony. This rule is known as the “felony-murder rule.” It was abolished in England in the mid-20th century and never existed in such continental nations as France or Germany. The rule became common, however, in various jurisdictions throughout the United States, although it never escaped criticism.

Felony murder is bifurcated into first-degree and second-degree murder: the former arises when the killing of another results from the commission of an enumerated felony; the latter arises when the killing of another results from the commission of an unspecified felony. The felony-murder rule negates any investigation into the objective intent of the offender; it obtains regardless of whether the offender killed his victim intentionally, recklessly, accidentally, or unforeseeably. Although it dispenses with the element of malice that is requisite to a finding of murder, the felony-murder rule retains by implication the concept of malice insofar as the intent to commit a felony is, under the rule, constitutive of malice for murder. The rule, in essence, conflates the intent to commit one wrong with the intent to commit another wrong, namely, the termination of another’s life. The intent to do a felonious wrong is, on this understanding, sufficiently serious to bypass any consideration of the nature of the exact wrong that was contemplated.

The most common justification for the felony-murder rule is that it deters dangerous felonious behavior and decreases the chance that an innocent bystander will suffer bodily harm from a high-risk felony. The possibility of a more severe conviction and sentence, according to this theory, reduces the number of negligent and accidental killings that might have taken place during the commission of a felony. Oliver Wendell Holmes, Jr., supported the felony-murder rule, believing as he did that a felonious offender who kills another person during the commission of any felony ought to be punished as a murderer, even if the killing was not foreseeable based on the circumstances of the felony. Critics of the deterrence justification for the felony-murder rule have argued that no rule can deter an unintended act.

Another justification for the felony-murder rule is that it affirms the sanctity and dignity of human life. This justification answers in the affirmative the question whether a felony resulting in death is more serious than a felony not resulting in death. Because a felony resulting in death is, in fact, more serious, according to this logic, a felony murderer owes a greater debt to society and must accordingly suffer a more extreme punishment. Critics of this view argue that the culpability for the two separate harms—the felony and the killing—must remain separate and be analyzed independently of each other. These critics suggest that the felony-murder rule runs up against constitutional principles regarding proportional punishment (i.e., whether the punishment “fits” the crime) and that there is no justice or fairness in punishing a felon for a harm (death) that was unintended.

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The Immunity Community

In America, American History, Arts & Letters, Britain, History, Humanities, Jurisprudence, Justice, Law, Libertarianism, Philosophy on September 10, 2014 at 8:45 am

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This piece first appeared here as a Mises Emerging Scholar article for the Ludwig von Mises Institute Canada.

The doctrine of sovereign immunity derives from the English notion that “the king can do no wrong” and hence cannot be sued without his consent. The purpose of this doctrine was, in England, from at least the Middle Ages until eighteenth century, to bar certain lawsuits against the monarch and his or her ministers and servants. With the rise of the English Parliament after the death of Elizabeth I, government officers and politicians sought to gain the power of immunity that the monarch and his or her agents had enjoyed.

In practice, however, English subjects were not totally deprived of remedies against the monarch or the government. The doctrine of sovereign immunity was not an absolute prohibition on actions against the crown or against other branches of government;[1] subjects could avail themselves of petitions of right or writs of mandamus, for instance, and monarchs fearful of losing the support of the people would often consent to be sued.

It was not until the monarchy had been demonstrably weakened that the doctrine of sovereign immunity began to be espoused with added urgency and enforced with added zeal. In the late eighteenth century, Sir William Blackstone intoned in his Commentaries on the Laws of England that the king “is not only incapable of doing wrong, but ever of thinking wrong: he can never mean to do an improper thing: in him is no folly of weakness.” These lines convert sovereign immunity into sovereign infallibility, a more ominous yet more dubious pretension.

Once the monarchy had been abolished altogether, the idea that the sovereign had to consent to be sued no longer held credence. As Louis L. Jaffe explains, “Because the King had been abolished, the courts concluded that where in the past the procedure had been by petition of right there was now no one authorized to consent to suit! If there was any successor to the King qua sovereign it was the legislature,” which, having many members subject to differing constituencies, was not as accountable as the monarch had been to the parties seeking to sue.[2]

The principle of sovereign immunity carried over from England to the United States, where most states have enshrined in their constitution an absolute bar against suing the State or its agencies and officers whose actions fall within the scope of official duties. The Eleventh Amendment to the U.S. Constitution likewise states that “the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” This provision, which applies only in federal courts and which does not on its face prohibit a lawsuit against a state by a citizen of that same state, was adopted in response to the ruling in Chisholm v. Georgia (1793), a case that held sovereign immunity to have been abrogated and that vested in federal courts the authority to preside over disputes between private citizens and state governments.

Notwithstanding the complex issues of federalism at play in the Chisholm decision and in the Eleventh Amendment, the fact remains that the doctrine of sovereign immunity has been applied with widening scope and frequency since the states ratified the Eleventh Amendment in 1795. The U.S. Supreme Court has contributed to the doctrine’s flourishing. “The Supreme Court’s acceptance of sovereign immunity as constitutional principle,” explains one commentator, “depends on its determination of the intent of the Framers, which ignores a great deal of historical evidence from the time of the founding and relies primarily on a discredited account of the Eleventh Amendment first articulated in the 1890 case of Hans v. Louisiana.”[3]

State and federal courts have now built an impregnable wall of immunity around certain state and federal officers. The sovereign immunity that is enshrined in state constitutions is, in theory, not absolute because it is conferred only to certain agents and officers and does not prohibit lawsuits to enjoin such agents and officers from performing unconstitutional or other bad acts. In practice, however, the growth of qualified immunities, which is in keeping with the growth of government itself, has caused more and more agents of the State to cloak themselves in immunity.

Bus drivers, teachers, coroners, constables, high school coaches, doctors and nurses at university hospitals, security guards, justices of the peace, government attorneys, legislators, mayors, boards of education and health, university administrators, Indian reservations, prison guards and wardens, police officers and detectives, janitors in government facilities, licensing boards, tax assessors, librarians, railroad workers, government engineers, judges and justices, school superintendents and principals, towing companies, health inspectors, probation officers, game wardens, museum docents and curators, social workers, court clerks, dog catchers, contractors for public utilities, public notaries, tollbooth attendants, airport traffic controllers, park rangers, ambulance drivers, firefighters, telephone operators, bus drivers, subway workers, city council members, state auditors, agricultural commissioners—all have sought to establish for themselves, with mixed degrees of success, the legal invincibility that comes with being an arm of the state.

Yet the idea that “the king can do no wrong” makes no sense in a governmental system that has lacked a king from its inception. Its application as law has left ordinary citizens with limited recourse against governments (or against people claiming governmental status for the purpose of immunity) that have committed actual wrongs. When the government, even at the state level, consists of vast bureaucracies of the kind that exist today, the doctrine of sovereign immunity becomes absurd. If it is true that in nine states and in the District of Columbia the government employs more than 20% of all workers, imagine how many people are eligible to claim immunity from liability for their tortious conduct and bad acts committed on the job.

Local news reports are full of stories about government employees invoking the doctrine of sovereign immunity; few such stories find their way into the national media. Judge Wade McCree of Michigan, for instance, recently carried out an affair with a woman who was a party in a child-support case on his docket, having sexual intercourse with her in his chambers and “sexting” her even on the day she appeared as a witness in his courtroom. Although McCree was removed from office, he was immune from civil liability. An airport in Charleston, West Virginia, is invoking the doctrine of immunity to shield itself from claims that it contributed to a chemical spill that contaminated the water supply. Officer Darren Wilson may be entitled to immunity for the shooting of Michael Brown, depending on how the facts unfold in that investigation.

The U.S. Supreme Court once famously declared that the doctrine of sovereign immunity “has never been discussed or the reasons for it given, but it has always been treated as an established doctrine.”[4] A disestablishment is now in order. The size and scope of government is simply too massive on the state and national level to sustain this doctrine that undermines the widely held belief of the American Founders that State power must be limited and that the State itself must be held accountable for its wrongs. Friedrich Hayek pointed out that the ideal of the rule of law requires the government to “act under the same law” and to “be limited in the same manner as any private person.”[5] The doctrine of sovereign immunity stands in contradistinction to this ideal: it places an increasing number of individuals above the law.

If the law is to be meaningful and just, it must apply equally to all persons and must bind those who enforce it. It must not recognize and condone privileges bestowed upon those with government connections or incentivize bad behavior within government ranks. Sovereign immunity is a problem that will only worsen if it is not addressed soon. The king can do wrong, and so can modern governments. It’s time for these governments to be held accountable for the harms they produce and to stop hiding behind a fiction that was long ago discredited.

________

[1]See generally, Louis L. Jaffe, “Suits Against Governments and Officers: Sovereign Immunity,” 77 Harvard Law Review 1 (1963).

[2]Jaffe at 2.

[3]Susan Randall, “Sovereign Immunity and the Uses of History,” 81 Nebraska L. Rev. 1, 4 (2002-03).

[4]U.S. v. Lee, 106 U.S. 196, 207 (1882).

[5]F. A. Hayek, The Constitution of Liberty, Vol. 17 of The Collected Works of F.A. Hayek, ed. Ronald Hamowy(Routlege, 2011), p. 318.

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Donna Meredith Reviews Terry Lewis’s Latest Legal Thriller, Delusional

In Arts & Letters, Book Reviews, Books, Creative Writing, Fiction, Humanities, Justice, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Novels, Writing on December 18, 2013 at 8:47 am
Donna Meredith

Donna Meredith

Donna Meredith is a freelance writer living in Tallahassee, Florida. She taught English, journalism, and TV production in public high schools in West Virginia and Georgia for 29 years. Donna earned a BA in Education with a double major in English and Journalism from Fairmont State College, an MS in Journalism from West Virginia University, and an EdS in English from Nova Southeastern University. She has also participated in fiction writing workshops at Florida State University and served as a newsletter editor for the Florida State Attorney General’s Office. The Glass Madonna was her first novel. It won first place for unpublished women’s fiction in the Royal Palm Literary Awards, sponsored by the Florida Writers Association, and runner up in the Gulf Coast novel writing contest. Her second novel, The Color of Lies, won the gold medal for adult fiction in 2012 from the Florida Publishers Association and also first place in unpublished women’s fiction from the Florida Writers Association. Her latest book is nonfiction, Magic in the Mountains, the amazing story of how a determined and talented woman revived the ancient art of cameo glass in the twentieth century in West Virginia.  She is currently working on a series of environmental thrillers featuring a female hydrogeologist as the lead character.

Ted Stevens, still sporting a host of flaws, returns as a criminal defense lawyer in another gripping courtroom mystery by Terry Lewis.

Delusional, the third in the Ted Stevens series, follows Conflict of Interest and Privileged Information. It is Lewis’s most compelling book yet.

In Delusional Ted is appointed by the court to defend Nathan Hart, a young man confined to the Florida State Hospital in Chattahoochee for murdering his family—a crime Ted prosecuted.

Now Nathan is accused of murdering Aaron Rosenberg, a psychologist and administrator at the mental hospital. The motive? Rosenberg denied Nathan’s latest request to be released.

Not only did Nathan threaten to kill Rosenberg, but also an eyewitness placed Nathan at the murder scene, where his clothes were later found with blood stains.

The novel alternates first person accounts between Ted and Nathan, creating strong psychological profiles of both men and powerful suspense. This technique keeps us deeply involved and probing for the truth until the last pages.

As Ted delves into hospital affairs, he begins to wonder, despite all the evidence to the contrary, if Nathan might be innocent. Ted’s doubts infect the reader, but as we learn how clever and warped Nathan is, we don’t want to be manipulated by him any more than Ted does.

Nathan Hart is a fascinating character. We never doubt that he is mentally ill. We might give him a pass on believing God talks to him, because as he puts it: “Communication with the creator of the universe is not the sign of a mind out of touch with reality but of a soul in touch with the cosmos.”

But Nathan also believes his family members were involved in a worldwide conspiracy, part of a covert agency called “The Unit.” His evidence? Dog-eared magazines left on an end table. The arrangement of food in the refrigerator. A door left slightly ajar. You get the idea—Nathan is nuts. But he is also highly intelligent and can be charming at times.

What Ted has to determine is whether Nathan’s claims of innocence are valid—or just the rants of a delusional, paranoid schizophrenic.

Several staff members, though it seems unlikely, could have murdered Rosenberg. Frank Hutchinson, legal counsel at the hospital, might have motive. His wife, a psychologist, is rumored to have had an affair with the deceased. Dr. Rebecca Whitsen, Nathan’s psychologist; and James Washington, a social worker; had access to Nathan’s clothes and his food and medications—and Nathan swears he was being poisoned. Another possibility is the hospital’s Chief of Security. He is being investigated for sexual misconduct with patients. Rosenberg pushed the investigation, in which Nathan served as a witness.

Nathan also believes his uncle, a professor of international studies, could be behind the murder because of the Hart family’s connections to “The Unit.” Ted dismisses that as nonsense, but might the uncle have other reasons to want his nephew incarcerated?

And since this is a mental hospital, other patients with criminal tendencies provide alternatives Ted can present to a jury. Donnie Mercer is an inmate capable of violence. And then there is the mysterious Cindy Sands, a former patient who once stalked Dr. Whitsen.

Like any good series, this one has personal issues that develop from book to book. The client isn’t the only one with delusions. Ted Stevens fools himself into believing he has his addictions under control, but his substance abuse jeopardizes his career and the stability of his family.

Ted drinks and uses drugs to overcome “constant melancholy, which at times became a sadness so deep and dark nothing could penetrate it.” When under the influence, he demonstrates poor judgment and loses control of his temper. He creates more problems for himself, and then has even more reason to descend into that dark hole.

Watching layer upon layer of this psychological mystery peel away to reveal the truth is pure pleasure. The final judgment is messy, like real life, where evaluating good and evil can be difficult.

If you enjoy a good legal thriller, you’ll love this one for its complex characters and riveting plot.

Terry Lewis brings a wealth of courtroom experience to bear on his novels. He has been a circuit court judge in the Second Judicial Circuit in Florida since 1998, with prior service as a county judge in that circuit from 1989-98. His most famous decision occurred during the 2000 presidential election when he determined Florida’s secretary of state had to include recounted ballots in her final state presidential tally. The decision was ultimately overturned by the Supreme Court, and George W. Bush became president.

Terry Lewis

Terry Lewis

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A Reminder from Augustine: Sin and the Law

In Arts & Letters, Books, Christianity, Humanities, Jurisprudence, Justice, Law, Philosophy, Western Philosophy on November 29, 2013 at 8:45 am

Allen 2

We do well to remember the consequences visited upon Augustine when, as a teenager, he succumbed to sin and shook a person’s pear tree in order to steal the fallen pears—not because he was hungry or in need, but because he delighted in the sin.  “To shake and rob,” he said, “some of us wanton young fellows went, late one night (having, according to our disgraceful habit, prolonged our games in the streets until then), and carried away great loads, not to eat ourselves, but to fling to the very swine, having only eaten some of them; and to do this pleased us all the more because it was not permitted.”[1]

The mature Augustine, looking back on this event, acknowledged that theft violates and is punished by law—not just human law, he adds, pursuant to the teachings of Jesus, but the law written on men’s hearts.  He relates that he suffered (and suffers) from shame and regret as a result of this sin, and his shame or regret is punishment that humans cannot implement ourselves; it is punishment that we must rely on God to summon forth in our hearts and minds.  “It is foul,” Augustine says of his sin, adding, “I hate to reflect on it.  I hate to look on it.”[2]  One wonders whether human punishment based on human law can ever have the same long-lasting effect as divine punishment for violating the law written on human hearts.

Augustine does suggest that there is a law of man and a law of God and that he violated both; the consequences for violating man’s law would have been different from the consequences of violating God’s law, especially insofar as his punishment may not be of this world, although the Christian believer in the triune God must acknowledge that God’s sovereignty and sovereign law precede and have jurisdiction over all men’s actions, for God does not let anything come to pass that he does not know about or have control over.

[1] St. Augustine, The Confessions of St. Augustine, edited by J. G. Pilkington (New York: Horace Liveright, 1927), p. 33.

[2] St. Augustine, The Confessions of St. Augustine, edited by J. G. Pilkington (New York: Horace Liveright, 1927), p. 40.

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Literature and Liberty: Essays in Libertarian Literary Criticism

In Arts & Letters, Austrian Economics, Books, Economics, Emerson, Fiction, History, Humane Economy, Humanities, Imagination, Justice, Law-and-Literature, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, News and Current Events, News Release, Novels, Philosophy, Politics, Property, Rhetoric, Shakespeare, The Novel, Transnational Law, Western Civilization, Western Philosophy, Writing on November 15, 2013 at 8:46 am

Allen 2

My forthcoming book, Literature and Liberty: Essays in Libertarian Literary Criticism, is now available for pre-order here at Amazon.com or here at Rowman & Littlefield’s website.  From the cover:

The economic theories of Karl Marx and his disciples continue to be anthologized in books of literary theory and criticism and taught in humanities classrooms to the exclusion of other, competing economic paradigms. Marxism is collectivist, predictable, monolithic, impersonal, linear, reductive — in short, wholly inadequate as an instrument for good in an era when we know better than to reduce the variety of human experience to simplistic formulae. A person’s creative and intellectual energies are never completely the products of culture or class. People are rational agents who choose between different courses of action based on their reason, knowledge, and experience. A person’s choices affect lives, circumstances, and communities. Even literary scholars who reject pure Marxism are still motivated by it, because nearly all economic literary theory derives from Marxism or advocates for vast economic interventionism as a solution to social problems.

Such interventionism, however, has a track-record of mass murder, war, taxation, colonization, pollution, imprisonment, espionage, and enslavement — things most scholars of imaginative literature deplore. Yet most scholars of imaginative literature remain interventionists. Literature and Liberty offers these scholars an alternative economic paradigm, one that over the course of human history has eliminated more generic bads than any other system. It argues that free market or libertarian literary theory is more humane than any variety of Marxism or interventionism. Just as Marxist historiography can be identified in the use of structuralism and materialist literary theory, so should free-market libertarianism be identifiable in all sorts of literary theory. Literature and Liberty disrupts the near monopolistic control of economic ideas in literary studies and offers a new mode of thinking for those who believe that arts and literature should play a role in discussions about law, politics, government, and economics. Drawing from authors as wide-ranging as Emerson, Shakespeare, E.M. Forster, Geoffrey of Monmouth, Henry Hazlitt, and Mark Twain, Literature and Liberty is a significant contribution to libertarianism and literary studies.

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Thoughts on ‘The Road to Serfdom’: Chapter 7, “Economic Controls and Totalitarianism”

In Arts & Letters, Austrian Economics, Book Reviews, Books, Conservatism, Economics, Epistemology, Essays, History, Humane Economy, Humanities, Justice, Law, Libertarianism, Literature, Philosophy, Western Civilization, Western Philosophy on October 2, 2013 at 8:45 am

Slade Mendenhall

Slade Mendenhall is an M.Sc. candidate in Comparative Politics at the London School of Economics, with specializations in conflict and Middle Eastern affairs. He holds degrees in Economics and Mass Media Arts from the University of Georgia and writes for The Objective Standard and themendenhall.com, where he is also editor.

The following is part of a series of chapter-by-chapter analyses of Friedrich Hayek’s The Road to Serfdom, conducted as part of The Mendenhall’s expanding Capitalist Reader’s Guide project. Previous entries can be found here: Introduction, Chapter 1, 2, 3, 4, 5, and 6.

In “Economic Control and Totalitarianism”, the subject of Hayek’s seventh chapter, we find him at his best, with a clarity and reason that we have not seen since chapter two, “The Great Utopia.” In chapter seven, Hayek expounds upon numerous themes within the titular subject: the inextricability of dictatorial control and economic planning, the fallacy of believing that economic controls can be separated from broader political controls, the inevitability in a planned economy of controls extending to individuals’ choice of profession, and the interrelation of economic and political freedom. What aspects of the chapter we might find to criticize arise either from a desire for him to take his line of thinking a step further than he does or already established mistakes carried over from previous chapters. Despite a few minor missteps, however, Hayek’s chapter is, overall, an exceedingly positive contribution.

He begins by stating what is, to many self-deceiving advocates of socialism, a jarring observation: that planned economies, following their natural course, ultimately always require dictatorial rule. “Most planners who have seriously considered the practical aspects of their task,” Hayek writes, “have little doubt that a directed economy must be run on more or less dictatorial lines” (66). Without fully restating the argument here, Hayek implicitly rests upon the description of this tendency that he spelled out in chapter 5, “Planning and Democracy”: power in a planned system gradually consolidates into a central committee or single dictator as a matter of organizational efficiency, with a decisive central leadership winning out over the gridlock and inefficiencies of a democratic body. The point is as valid and well made here as it was then.

Where Hayek expounds upon this is in refuting one of the false promises often made by planners as they reach for the reins of a country’s economy: “the consolation… that this authoritarian direction will apply ‘only’ to economic matters” (66). Contrary to the suggestion that controls will be limited to economic affairs, Hayek asserts that economic controls in the absence of broader political controls are not simply unlikely, but impossible. Rather than simply detailing in a typical way the interrelationship of economic and other activities, Hayek acknowledges the inseparability of the two, writing, “It is largely a consequence of the erroneous belief that there are purely economic ends separate from the other ends of life” (66). He later elaborates:

“The authority directing all economic activity would control not merely the part of our lives which is concerned with inferior things; it would control the allocation of the limited means for all our ends. And whoever controls all economic activity controls the means for all our ends, and must therefore decide which are to be satisfied and which not. This is really the crux of the matter. Economic control is not merely control of a sector of human life which can be separated from the rest; it is the control of the means for all our ends” (68).

Hayek’s point is, in the context of modern economic education, a largely underappreciated and mishandled one. Economics instructors have, with time, lost the important skill of contextualizing economic interests within the broader scope of other human pursuits, instead treating them either as abstract ideas toyed with in a vacuum without real-world ramifications or preaching the ‘economics is everything’ doctrine to the exclusion of other analytical tools and frameworks.

Hayek, whether by virtue of writing at a time less bound by such false dichotomization of the field or simply due to his exceptional qualities as an economic thinker, successfully avoids both traps. “Strictly speaking,” he writes,

“there is no ‘economic motive’ but only economic factors conditioning our striving for other ends. What in ordinary language is misleadingly called the ‘economic motive’ means merely the desire for general opportunity, the desire for power to achieve unspecified ends. If we strive for money it is because it offers us the widest choice in enjoying the fruits of our efforts” (67).

Hayek rightly acknowledges money as a profoundly empowering economic good, calling it “one of the greatest instruments of freedom ever invented by man” that “opens an astounding range of choice to the poor man, a range greater than that which not many generations ago was open to the wealthy” (67).

Chapter seven goes on to briefly characterize the pervasiveness of central planning, and its propensity to spread to all areas of a society. Hayek recognizes that the much-eluded question of socialism-versus-capitalism is not simply one of which decisions individuals are to make for their lives, but whether the decision is to be theirs at all:

“The question raised by economic planning is, therefore, not merely whether we shall be able to satisfy what we regard as our more or less important needs in the way we prefer. It is whether it shall be we who decide what is more, and what is less, important for us, or whether this is to be decided by the planner” (68).

Those on both sides of the aisle in the United States today, who fail in so many matters to appreciate the distinction between individuals choosing the right thing for their lives and a government official imposing their choice (be it right or wrong) upon them, would do well to heed Hayek’s warning. Modern American political thinking, caught between an increasingly authoritarian left (taken directly from Marx and Rousseau, or updated via modern incarnations like Krugman, Sunstein, and Stiglitz) and a right that has yet to extend its limited government spirit to all areas of economics—much less censorship and social issues—has a great deal to learn from an Austrian economist’s words written some seventy years ago.

One element of central planning that utopian-minded young socialist idealists evade is that labor, being an input, must, in a controlled economy be as controlled as any other good—if not more so. This does not mean simply the control of wages or the maintenance of union. Ultimately, it means government control over the quantity of individuals in a given profession, conducted in the interest of keeping wages in a given field high and ensuring that there is an adequate supply of expertise to meet all of the economy’s needs. This means at some point dictating who can and cannot enter a given field of work.

Hayek writes,

“Most planners, it is true, promise that in the new planned world free choice of occupation will be scrupulously preserved or even increased. But there they promise more than they can possibly fulfill. If they want to plan they must control the entry into the different trades and occupations, or the terms of remuneration, or both” (71).

How many young socialists on college campuses across the country would not object to being torn from their chosen course of study and compelled to study for degrees in which they had no interest, to spend their lives in careers they did not love? That is the fate that they ask for, whether they recognize it as such or not. Would they accept it willingly? Would they “become a mere means, to be used by the authority in the service of such abstractions as the ‘social welfare’ or the ‘good of the community’” (72), bowing their heads subserviently to spend a life on a path that was chosen for them, for the good of society? Perhaps some. And perhaps others would recognize the nature of what they profess to believe in and renounce it. Either way, it is a reality that should be presented to them in those terms by those who see socialism for what it is.

Towards the end of the chapter, Hayek makes several key observations that would prove all the more true in the decades after his writing.  He notes the decline of references by advocates of socialism to the functional superiority of socialism. Gradually witnessing their system being discredited, but doubling-down on their dogma, the socialists of the mid-20th century came to look less and less like those of the early 20th century, who believed in the system as a technically superior model for society. Instead, their arguments turned egalitarian in nature,  “advocat[ing] planning no longer because of its superior productivity but because it will enable us to secure a more just and equitable distribution of wealth” (74). Little did Hayek know how far that trend would go with the rise of the New Left and its legacies, stretching up to the present and the current American administration.

Finally, in another point that has proven all the more true since the time of his writing, Hayek recognizes that the extent of planning proposed by socialism, empowered by modern modes of control, is that much greater than the control and subjugation that occurred under the days of monarchy and feudalism. In reading it, one is brought to wonder how much greater that mechanism of control is today, with NSA surveillance, a growing regulatory state, and ever more executive agencies maintaining armed units to impose their rules, than at Hayek’s writing in 1943.

Hayek’s seventh chapter is a valuable and, for the same reasons, saddening one for the way that it makes us reflect upon the applicability of his words and ideas to our current political environment. Though our current condition is far from totalitarian in nature, the same principles apply, to a lesser extent, in all areas where government intrudes to control markets, alter incentives, or provide special advantages to some at the expense of others.

Human beings are rational animals. We respond to the incentives around us. In the presence of a government that seems increasingly, explicitly willing to toy with those incentives to alter our behavior to suit models and ideals for our lives that are not our own, how much do we lose that we never knew we had? In what ways are our options limited? Need it be by a government edict that tells a young man who would study to be a doctor that doctors are no longer needed, and he should apply to be an engineer instead? No. It may be as subtle as inflating the price of his education through government loan programs, regulating the field he seeks to enter, and subjecting him to entitlement programs that tell him that his life’s work is not his own; that he works and exists in the service of society as a whole. And at that point, the difference between our condition and the ill fate that Hayek describes becomes one not of kind, but of degree.

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Law and Locality

In Arts & Letters, Humanities, Jurisprudence, Justice, Law, Libertarianism, Philosophy, Politics on August 7, 2013 at 8:45 am

Allen Mendenhall - Copy

On one common definition, law is a practice or set of rules based in custom and habit.  Law is not diktat.  It arises spontaneously through the interaction of human agents operating within and among social groups and precedes State promulgation.

Legislative enactment can reflect the law as it is constituted in the mores and traditions of groups, but it can also be the result of governmental usurpation.  The legislator does not embody the peoples he represents, and as society grows ever more complex and populations ever denser, as technologies link us more and more to one another in cyberspace and other virtual fora with disembodied communicants, the notion that the legislator speaks on behalf of his constituents becomes increasingly dubious if not downright absurd.

Local groups such as schools, clubs, community organizations, and churches have complex rules of exchange derived from shared mores and traditions.  They are more likely to speak accurately about the wants and needs of their community.  Their rules are not necessarily articulated, but tacitly understood.

These local groups recognize regulations not as monolithic, governmental impositions but as integrated schemes of social principles.  Group-members who fail or refuse to follow rules and regulations are punished.  On this local level, punishment can be simple: ostracism or public disapproval. A businessperson who violates another businessperson’s trust will lose business, just as he will lose clients by losing consumers’ trust; a church-member living in sin will likewise suffer from the judgment of his peers or, more appropriately, from the canon law pertaining to his sin.

In these examples, it is clear that the State should not intervene in punishing the wrongdoer; local custom and habit suffice to regulate conduct without resort to State violence or compulsion; therefore, private associations suffice to generate rules and their corresponding punishments.  Distant government bodies are not likely to conform to the intricate constitutions of local peoples and therefore are likely to exercise their disciplinary powers using punitive, exploitative, or arbitrary means.

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Book Note: Poetic Justice and Legal Fictions, by Jonathan Kertzer

In Arts & Letters, Book Reviews, Humanities, Jurisprudence, Justice, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Writing on September 28, 2012 at 8:45 am

Allen Mendenhall

The following excerpt first appeared as part of the Routledge Annotated Bibliography of English Studies series.

This book is a compilation of literary essays that at first blush seem to have no through line save for an attention to law in the abstract.  Nevertheless, each chapter is connected by the theme of justice and the relation of language to both law and literature.

Á la Flaubert, the book treats justice as the supreme literary value, and it distinguishes between the justice of literature and the literariness of justice.  Language has its own jurisdiction and can be used judiciously, and the author seems to believe that signifiers can represent the phenomenal world in ways that have a practical bearing in law.  By the same token, language itself is regulated by laws even as it enacts laws.  The author discusses literary justice as a poetic expression of the material world.

The phrase “poetic justice” refers to the possibility that poetry might offer something better than truth in order to bring about justice; the truly poetic is just.  Genre and jurisdiction resemble one another in their conceptual claims to authority or law.

Beginning with judicial discourse in comedies, more specifically with the operas of Gilbert and Sullivan, the book moves through Nietzsche, Baudrillard, Disgrace, Huckleberry Finn, The African Queen, Billy Budd, the poetry of Wallace Stevens, Anil’s Ghost, and other works.  The book therefore does not limit itself to discussion of a particular historical period, a fixed geography, or a specific genre.  Rather, it weaves together a wide range of novelists, theorists, and historical figures, many of whom are unlikely to be categorized together were it not for their interests (some longstanding, some fleeting) in law.

What allows the book to read as a unified whole is its analysis at the intersections of justice, law, and literary forms.