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Habermas for Law Professors

In Art, Arts & Letters, Communication, Creativity, Essays, Ethics, Habermas, Humanities, Information Design, Jurisprudence, Law, Law-and-Literature, Legal Education & Pedagogy, Legal Research & Writing, Literary Theory & Criticism, Literature, Pedagogy, Philosophy, Politics, Pragmatism, Rhetoric, Rhetoric & Communication, Teaching, Western Civilization, Western Philosophy, Writing on November 4, 2011 at 3:12 pm

Allen Mendenhall

This post is an adaptation of this printable, PDF document. 

This post is intended to assist law professors who wish to incorporate critical theory (in general) and Habermas (in particular) into their teaching.  This post addresses just one essay by Habermas that is representative of his thought.  It does not address other important areas of Habermasian theory such as the “public sphere” (a concept that the essay nevertheless implicates). 

This post should provide some basic insights into Habermas that could be incorporated into a law school classroom.  Contracts in particular would benefit from Habermasian analyses, which could just as constructively be applied to torts, evidence, constitutional law, or any course dealing with litigation and the courtroom.  This post provides basic information.  It does not tell law professors how to use the information.  The use will require creativity. 

 

Fundamental to the paradigm of mutual understanding is … the performative attitude of participants in interaction, who coordinate their plans for action by coming to an understanding about something in the world.  When ego carries out a speech act and alter takes up a position with regard to it, the two parties enter into an interpersonal relationship.  The latter is structured by the system of reciprocally interlocked perspectives among speakers, hearers, and non-participants who happen to be present at the time. 

        —Jürgen Habermas, “An Alternative Way Out of the Philosophy of the Subject”[1]

In a way, “An Alternative Way Out of the Philosophy of the Subject” is a response to Foucault’s theories of subjectivity that treat subjects as produced by forces of power.  Habermas seems to consider Foucault’s theories as so preoccupied with knowledge formation and structural preconditions for knowledge formation that they (the theories) become pseudoscience abstracted from practical realities.  A Foucaultian paradigm centers on subjectivity trained by mechanical forces whereas a Habermasian paradigm explores communicative reason in the context of discourse enabled by the ideations of individual subjects articulating their positions to one another in mutually intelligible utterances.       

Contra Foucault, Habermas submits that reason—articulated, assimilated, and mediated by language—must be understood as social.  For social interaction to be meaningful, its interlocutors must believe that their articulations are objectively “true” or sincere (I place “true” in quotations because the “pragmatically expanded theory of meaning overcomes [the] fixation on the fact-mirroring function of language”).  Speech must be governed by points of common understanding.  These points are reached when “ego carries out a speech act and alter takes up a position with regard to it.”  Ego, here, refers to a person’s conscious awareness that is capable of being conveyed in speech.  “Alter” does not refer to alter ego, but to some agent outside the subjective world of cognition, intention, and belief.  This “alter” is part of the external or objective world to which the ego can articulate feelings or thoughts, provided that ego and alter have in common a familiar discursive space (a lifeworld) for their subjective expressions.  By this reading, alter has an ego, and ego can be an alter.  The terms simply depend upon which subject is articulating his position in a given speech situation; the terms are merely descriptive.  

To claim that we can comprehend events or things in the world is to suggest that we can speak about them.  To speak about events or things in the world is to convey information about them from one party to another using shared vocabularies governed by rules that the parties accept unconditionally. The interpersonal relationship among or between parties, as Habermas suggests, is “structured by the system of reciprocally interlocked perspectives.”  The study of this relationship brings Habermas further away from the Foucaultian paradigms of subjectivity and towards the paradigm of mutual understanding that has come to mark Habermasian thought.  Read the rest of this entry »

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BOOK REVIEW | Autobiography of Mark Twain, Vol. 1: The Complete and Authoritative Edition

In American History, Arts & Letters, Book Reviews, Essays, Fiction, History, Humanities, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Nineteenth-Century America, Novels, Politics, Rhetoric, Western Civilization, Writing on November 1, 2011 at 9:26 am

Allen Mendenhall

The following post originally appeared here at Prometheus Unbound: A Libertarian Review of Fiction and Literature.

Good things come to those who wait, the old adage goes, and the world has waited a century for Mark Twain’s autobiography, which, in Twain’s words, is a “complete and purposed jumble.”

This 760 page jumble is a good thing. And well worth the wait.

Twain, or Samuel L. Clemens, compiled this autobiography over the course of 35 years. The manuscript began in fits and starts. Twain, while establishing his legacy as a beloved humorist and man of letters, dashed off brief episodes here and there, assigning chapter numbers to some and simply shelving others. In 1906, he began making efforts to turn these cobbled-together passages into a coherent narrative. He met daily with a stenographer to dictate various reflections and then to compile them into a single, albeit muddled, document. The result was a 5,000 page, unedited stack of papers that, per Twain’s strict handwritten instructions, could not be published until 100 years after his death.

To say that we’ve waited a century to view this manuscript is only partially accurate because pieces of the manuscript appeared in 1924, 1940, and 1959. But this edition, handsomely bound by the University of California Press, and edited by Harriet Elinor Smith and others of the Mark Twain Project, is the first full, printed compilation of the autobiographical dictations and extracts. The editors, noting that “the goal of the present edition [is] to publish the complete text as nearly as possible in the way Mark Twain intended it to be published before his death,” explain that “no text of the Autobiography so far published is even remotely complete, much less completely authorial.” The contents of this much-awaited beast of a book, then, are virtually priceless; no doubt many of Twain’s previously unread or unconsidered passages will become part of the American literary canon.

Stark photographs of the manuscript drafts and of Twain and his subjects — including family members and residences — accompany this fragmentary work. The lively and at times comical prose is in keeping with the rambling style of this rambling man whom readers have come to know and appreciate for generations.  Read the rest of this entry »

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The Oft-Ignored Mr. Turton in E.M. Forster’s A Passage to India

In Arts & Letters, Austrian Economics, Book Reviews, Communication, E.M. Forster, Eastern Civilizaton, Emerson, Essays, Fiction, History, Humane Economy, Humanities, Jurisprudence, Law, Law-and-Literature, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Novels, Philosophy, Politics, Religion, Transnational Law, Western Civilization, Western Philosophy on October 17, 2011 at 11:55 am

Allen Mendenhall

The following post first appeared here at Prometheus Unbound: A Libertarian Review of Fiction and Literature.

A Passage to India, by E.M. Forster [trade paperback]; also made into an award-winning film.

Perhaps the most important task of all would be to undertake studies in contemporary alternatives to Orientalism, to ask how one can study other cultures and peoples from a libertarian, or a nonrepressive and nonmanipulative, perspective.

– Edward Said, Orientalism

When I asked Dr. Plauché what I should review for my first contribution to Prometheus Unbound, he suggested that I elaborate on my recent Libertarian Papers article: “The Oft-Ignored Mr. Turton: The Role of District Collector in A Passage to India.”  Would I, he asked, be willing to present a trimmed-down version of my argument about the role of district collectors in colonial India, a role both clarified and complicated by E.M. Forster’s portrayal of Mr. Turton, the want-to-please-all character and the district collector in Forster’s most famous novel, A Passage to India.  I agreed.  And happily.

For those who haven’t read the novel, here, briefly, is a spoiler-free rundown of the plot.  A young and not particularly attractive British lady, Adela Quested, travels to India with Mrs. Moore, whose son, Ronny, intends to marry Adela.  Not long into the trip, Mrs. Moore meets Dr. Aziz, a Muslim physician, in a mosque, and instantly the two hit it off.  Mr. Turton hosts a bridge party — a party meant to bridge relations between East and West — for Adela and Mrs. Moore.  At the party, Adela meets Mr. Fielding, the local schoolmaster and a stock character of the Good British Liberal.  Fielding invites Adela and Mrs. Moore to tea with him and Professor Godbole, a Brahman Hindu.  Dr. Aziz joins the tea party and there offers to show Adela and Mrs. Moore the famous Marabar Caves.

When Aziz and the women later set out to the caves — Fielding and Godbole are supposed to join, but they just miss the train — something goes terribly wrong.  Adela offends Aziz, who ducks into a cave only to discover that Adela has gone missing.  Aziz eventually sees Adela speaking to Fielding and another Englishwoman, both of whom have driven up together, but by the time he reaches Fielding the two women have left.  Aziz heads back to Chandrapore (the fictional city where the novel is set) with Fielding, but when he arrives, he is arrested for sexually assaulting Adela.  A trial ensues, and the novel becomes increasingly saturated with Brahman Hindu themes.  (Forster is not the only Western writer to be intrigued by Brahman Hinduism.  Ralph Waldo Emerson and William Blake, among many others, shared this fascination.)  The arrest and trial call attention to the double-standards and arbitrariness of the British legal system in India.

Rule of law was the ideological currency of the British Raj, and Forster attempts to undercut this ideology using Brahman Hindu scenes and signifiers.  Rule of law seeks to eliminate double-standards and arbitrariness, but it does the opposite in Chandrapore.  Some jurisprudents think of rule of law as a fiction.  John Hasnas calls rule of law a myth.  Whatever its designation, rule of law is not an absolute reality outside discourse.  Like everything, its meaning is constructed through language and cultural understanding.  Rule of law is a phrase that validates increased governmental control over phenomena that government and its agents describe as needing control.  When politicians and other officials lobby for consolidation or centralization of power, they often do so by invoking rule of law.  Rule of law means nothing if not compulsion and coercion.  It is merely an attractive packaging of those terms. 

British administrators in India, as well as British commentators on Indian matters, adhered in large numbers to utilitarianism.  Following in the footsteps of Jeremy Bentham, the founding father of utilitarianism, these administrators reduced legal and social policy to calculations about happiness and pleasure.  Utilitarianism holds, in short, that actions are good if they maximize utility, which enhances the general welfare.  Utilitarianism rejects first principles, most ethical schools, and natural law.  Rather than couch their policymaking in terms of happiness and pleasure, British administrators in India, among other interested parties such as the East India Company, invoked rule of law.  Rule of law manifested itself as a concerted British effort to discipline Indians into docile subjects accountable to a British sovereign and dependent upon a London-centered economy.  The logic underpinning rule of law was that Indians were backward and therefore needed civilizing.  The effects of rule of law were foreign occupation, increased bureaucratic networks across India, and imperial arrogance.

Murray Rothbard was highly critical of some utilitarians, but especially of Bentham (see here and here for Rothbard’s insights into the East India Company).  In Classical Economics, he criticized Bentham’s opinions about fiat currency, inflationism, usury, maximum price controls on bread, and ad hoc empiricism.  Bentham’s utilitarianism and rule of law mantras became justifications for British imperialism, and not just in India.  A detailed study of Hasnas’s critique of rule of law in conjunction with Rothbard’s critique of Bentham could, in the context of colonial India, lead to an engaging and insightful study of imperialism generally.  My article is not that ambitious.  My article focuses exclusively on A Passage to India while attempting to synthesize Hasnas with Rothbard.  Forster was no libertarian, but his motifs and metaphors seem to support the Hasnasian and Rothbardian take on rule of law rhetoric and utilitarianism, respectively.  These motifs and metaphors are steeped in Brahman Hindu themes and philosophy. Read the rest of this entry »

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Lyotard’s “Differend” and Torts

In Arts & Letters, History, Humanities, Jurisprudence, Law, Law-and-Literature, Legal Education & Pedagogy, Libertarianism, Literary Theory & Criticism, Philosophy, Politics, Rhetoric, Rhetoric & Communication, Western Civilization, Western Philosophy on October 13, 2011 at 12:53 pm

Allen Mendenhall

 

“I would like to call a differend [différend] the case where the plaintiff is divested of the means to argue and becomes for that reason a victim.  If the addressor, the addressee, and the sense of the testimony are neutralized, everything takes place as if there were no damages (No. 9).  A case of differend between two parties takes place when the ‘regulation’ of the conflict that opposes them is done in the idiom of one of the parties while the wrong suffered by the other is not signified in that idiom.”

                             —Jean-François Lyotard, from “The Differend”

Lyotard’s term “differend” does not refer to a concrete, tangible thing; it refers to a situation.  The situation is one where a plaintiff has lost the ability to state his case, or has had that ability taken from him.  He is therefore a victim.  If the plaintiff has no voice, he has no remedies because he cannot prove damages.  Just as one cannot prove something happened if the proof no longer exists, so one cannot prove something happened if the proof depends upon the approval of another person or party denying or erasing the proof, or having the power to deny or erase the proof.  Lyotard describes this situation in relation to power or authority.  Because of the nature and function of power or authority, a person or group possessing power or authority can divest the plaintiff of a voice.  This divestiture results in what Lyotard calls a “double bind” whereby the referent (“that about which one speaks”) is made invisible.  A plaintiff who is wronged by the power or authority cannot attain justice if he has to bring his case before the same power or authority.  As Lyotard explains, “It is in the nature of a victim not to be able to prove that one has been done a wrong.  A plaintiff is someone who has incurred damages and who disposes of the means to prove it.  One becomes a victim if one loses these means.  One loses them, for example, if the author of the damages turns out directly or indirectly to be one’s judge.”  Specifically, Lyotard uses the differend to describe the situation where victims of the Nazi gas chambers lack the voice to articulate their case in terms of proof because, among other things, the reality or referent is so traumatizing and tragic as to be ineffable. 

If Entity A harms me in some way, and Entity A also represents the arbiter or judge before whom I must appeal for justice, Entity A can (and probably will) neutralize my testimony.  That is why a State may tax its citizens.  In effect, a State has the power or authority to do something—take a person’s earnings against his will and punish or threaten to punish him, by force if necessary, when he fails or refuses to yield his earnings—that a private person or party cannot do.  When a private party demands money from a person, and threatens to use force against that person if he does not yield the money, the private party has committed theft.  The difference between theft (an unauthorized taking by one who intends to deprive the other of some property) and taxation (an authorized taking by an institution that intends to deprive the other of some property) is the capacity or ability to sanction.  The difference depends upon who controls the language: who has the power to privilege one form of signification over another and thus to define, determine, or obliterate the referent. 

“Sanction” is a double-edged term: it can mean either to approve or to punish.  Both significations apply to the State, which, in Lyotard’s words, “holds the monopoly on procedures for the establishment of reality.”  (Note: Lyotard is not referring to any State, but to the “learned State,” a term he borrows from François Châtelet.)  Sanction is implicated when a party is harmed, or alleges to have been harmed, whether by the State or by a private party.  The State then resolves whether the harm, or the act causing the harm, is “sanctionable”—whether, that is, it receives State approval or condemnation.  The State either validates [sanctions] the alleged harm (in which case the alleged harm officially is not a harm), or it condemns the alleged harm (in which case the alleged “harm” is officially constituted as a “harm”) and then punishes [sanctions] the one who caused the harm.  In any case, the State sanctions; it enjoys the power to decide what the referent ought or ought not to be.  Read the rest of this entry »

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A Few More Words on Patrick Allitt’s The Conservatives

In American History, Arts & Letters, Book Reviews, Conservatism, History, Humanities, Liberalism, Libertarianism, Politics on October 9, 2011 at 4:51 pm

Allen Mendenhall

Many American politicians call themselves “conservative” despite never having read Paul Elmer More, Irving Babbitt, Robert Taft, Donald Davidson, Frank Meyer, Richard Weaver, James Burnham, or Russell Kirk.  Television pundits recycle the term “neoconservative” without even a passing reference to Leo Strauss, Irving Kristol, or Norman Podhoretz.  A welcome respite from the ignorance of the talking heads, Patrick Allitt’s The Conservatives (Yale University Press, 2009) is an engaging and informative book, even if it is more of an introduction to American conservatism than a critical study.  I recently reviewed the book here at the journal 49th Parallel, but I have more to say about it.

American conservatism is rich and complex but too often simplified or ignored by academics who think they know what conservatism means.  I applaud Allitt for taking conservatism seriously and for marshaling a wealth of evidence to support his thesis.  Those who cannot identify what generally distinguishes a paleoconservative from a neoconservative, or who’re confused by the apparent hypocrisy of conservatives who call for big-government spending on military and surveillance while griping about big-government, need to read this book.  Allitt provides clarity and direction for the uninitiated.  He deserves not just our attention, but our admiration.

Allitt attends to several figures in this book, including John Adams, Alexander Hamilton, William Cobbett, John Marshall, John Randolph of Roanoke, George Fitzhugh, Rufus Choate, Henry Clay, Daniel Webster, George Ticknor, Abraham Lincoln, Orestes Brownson, William Graham Sumner, Andrew Carnegie, Theodore Roosevelt, John Crow Ransom, Andrew Lytle, H. L. Mencken, Herbert Hoover, William Howard Taft, Albert Jay Nock, Ralph Adams Cram, George Santayana, Friedrich Hayek, Ludwig Von Mises, Murray Rothbard, Ayn Rand, Whittaker Chambers, William F. Buckley, Milton Friedman, Barry Goldwater, George Will, Ronald Reagan, Michael Novak, Robert Bork, Allan Bloom, M. E. Bradford, Thomas Fleming, Clyde Wilson, Francis Fukuyama, Samuel Huntington, Patrick Buchanan, Jerry Falwell, Roger Kimball, Thomas Sowell, Charles Murray, Dinesh D’Souza, and others.  One book cannot address every major figure that influenced American conservatism, and Allit’s failure to mention some names (Strom Thurmond, Gerald Ford, Dick Cheney, Newt Gingrich, Donald Rumsfeld, Wendell Berry, James Dobson, Pat Robertson, or any of the Bob Joneses) is understandable.  Paul Gottfried appears just once in the book, and passingly.  But a case could be made that Gottfried’s paleoconservatism is more European in origin and thus worthy of analysis.  And surely Eric Voegelin warrants more than a casual reference in a single paragraph.

For some, Allitt’s most objectionable suggestion will be that the Civil War was a conflict of two conservatisms: Calhoun’s versus Webster’s.  This interpretation illuminates and simultaneously complicates such recent debates as the one held between Thomas DiLorenzo and Harry V. Jaffa over the issue of Abraham Lincoln’s legacy.

Allitt also suggests that the Federalists represent an early manifestation of conservatism.  This classification would mean that Jefferson and his ilk were not conservatives, which would in turn imply that current Jeffersonians are not in keeping with a purely conservative tradition.  Allitt offers this helpful and accurate note about Jefferson: “He might not have been the Jacobin his Federalist foes alleged, but neither can he easily be thought of as a conservative.”  Many scholars and enthusiasts consider Jefferson to be a “classical liberal,” but the signification of that word relative to “libertarian” or “conservative” merely confounds definitional precision:  All three words have been used interchangeably and negligently in recent decades.  It may not matter if Jefferson is called “conservative” or “liberal,” especially if those terms cause people to short-circuit reflection or affix a contemporary label to a complicated man living in a complex, radically different era.

Allitt’s book is a fine contribution to and about conservative letters.  I recommend it to anyone who thinks he can explain conservatism.

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BOOK REVIEW: Laura F. Edwards. The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill, North Carolina: University of North Carolina Press, 2009).

In Advocacy, American History, Arts & Letters, Book Reviews, Civil Procedure, History, Humanities, Jurisprudence, Law, Laws of Slavery, Nineteenth-Century America, Politics, Rhetoric, Slavery, Southern History, The South on September 28, 2011 at 10:41 am

Allen Mendenhall

Since Mark Tushnet revived the study of slave laws in the American South, several historians, most notably Paul Finkelman, Thomas D. Morris, and Ariela Gross, have followed in his footsteps.  Laura F. Edwards’s The People and Their Peace is a book that extends this trend in scholarship.  Focusing on North and South Carolina from roughly 1787 to 1840, and more specifically on three North Carolina counties and four South Carolina counties during that time, Edwards situates local law in contradistinction to state law, portraying the former as polycentric and heterogeneous and the latter as centralized and homogenous.  Edwards suggests that state law was more aspirational than practical in the early nineteenth-century Carolinas because it failed to inform ordinary legal practice at the local level in the same way that resident culture or custom did.

Pitting “reformers” (elite individuals who sought to create a uniform and consolidated body of rules that appellate courts could enforce at the state level) against locals, Edwards demonstrates that the legal system was bottom-up and not top-down and that law on paper or in statutes was different from law in practice.  On paper or in statutes, law subordinated lower courts to appellate courts and seemed, in keeping with the reformers’ ideals, systematized into a unitary, integrated order that reflected the supposedly natural and inevitable unfolding of history.  Reformers selectively compiled local laws and practices into lengthy works to forge the impression that law was a set of consistent, underlying principles.  In practice, however, law was variable, contingent, and contextual.  It emerged from the workaday and quotidian operations of individuals in towns and communities.  Law was therefore as messy as it was unpredictable, and it cannot be understood today without a deep knowledge of interpersonal relationships and cultural conditions in locales where courts sat.  Slave codes, for instance, did not reflect realities on the ground because they were handed down by state legislatures and could not account for the reputations and routines of people in local communities—people who cared less about consistency in the law or about fixed principles than about their personal stake in any given legal matter. 

This book is a corrective to histories interested principally in local legal sources but neglectful of the particularities that brought about these local sources.  It marshals evidence from legal documents—especially case decisions, including appellate opinions—while considering why and how those documents were produced.  The development of state law became increasingly important during the antebellum years, but the rise in state law—which privileged narratives of individual rights, standardized legal principles, and enabled southern distinctiveness—does not make sense apart from local data.  Local data reveals much about the processes (as opposed to philosophies) of law.  Put differently, local law remained discretionary because it was fluid and not subject to abstract and purely notional mantras about rights. Read the rest of this entry »

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Foucault’s Nietzschean Genealogy

In Art, Arts & Letters, Historicism, History, Humanities, Literary Theory & Criticism, Philosophy, Politics, Rhetoric, Western Philosophy, Writing on September 17, 2011 at 10:02 am

Allen Mendenhall

“Genealogy […] requires patience and knowledge of details, and it depends on a vast accumulation of source material.  Its ‘cyclopean monuments’ are constructed from ‘discreet and apparently insignificant truths and according to a rigorous method’; they cannot be the product of ‘large and well-meaning errors.’  In short, genealogy demands relentless erudition.  Genealogy does not oppose itself to history as the lofty and profound gaze of the philosopher might compare to the molelike perspective of the scholar; on the contrary, it rejects the metahistorical deployment of ideal significations and indefinite teleologies.  It opposes itself to the search for ‘origins.’”

                                      —Michel Foucault, from “Nietzsche, Genealogy, History”

This brief passage by Foucault has three references to Nietzsche.  The essay from which the passage is drawn demonstrates Foucault’s immense debt to Nietzsche, citing as it does no other thinker but Nietzsche (save for a fleeting reference to Paul Ree, whose term “Ursprung,” or “origin,” Nietzsche adopts).  Of all Nietzsche’s ideas and practices, genealogy is the one that Foucault cultivates most impressively.  Genealogy is a methodology by and with which one documents or tracks the development of ideas and their relation to human organization.  In other words, genealogy traces knowledge to its systemic formations across various networks of discourse.  That is why genealogy “requires patience” and “depends on a vast accumulation of source material.”  It is a process, and processes take time to work out. 

Genealogy does not recover origins because origins are not recoverable.  Origins are fluid, not fixed; they are not, strictly speaking, origins at all—if, that is, “origins” is taken to mean single, absolute causes or definite, immutable sources.  Rather, for Foucault, “origins” is a term of convenience—perhaps strategically essentialized—referring to sets of beliefs and activities that constitute discursive structures mobilized by numerous truth claims.  That is why Foucault can employ the term “origins” in one sentence and then, in a subsequent sentence, seemingly reverse course by calling origins “chimeras.”  The point is not to define or explain origins; the point is to discredit the idea of origins as self-evident and immanently knowable. 

Origins themselves are inaccessible; the emergence and development of structures based on ideas, however, are not only accessible, but also edifying.  Foucault’s genealogy, therefore, seeks to collect data about numerous truth claims and then to explain how these data form and shape culture.  As Foucault says of genealogy, “It opposes itself to the search for ‘origins.’”  Note the quotation marks around “origins.”  Those marks suggest an intent to divest that term of its expressive purchase.  Origins are knowable only as points of loss or complication, only as intricate and multifaceted constructs that, when examined closely, signify multiple and heterogeneous phenomena and that thus enable and sustain further inquiry.     Read the rest of this entry »

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Allen Mendenhall Interviews Richard Miles

In Advocacy, Arts & Letters, Communication, Ethics, Law, News and Current Events, Politics, Prison, Rhetoric, Rhetoric & Communication, Teaching, Writing on September 14, 2011 at 9:23 am

Richard Miles spent years in prison after being wrongly convicted and sentenced to 80 years.  He lives in Texas and speaks about false imprisonment.

Richard, thanks for doing this interview.  You and I have gotten to know each other through email correspondence.  I believe you first contacted me after reading my review of Dorothy and Peyton Budd’s Tested: How Twelve Wrongly Imprisoned Men Held Onto Hope (Dallas, TX: Brown Books Publishing Group, 2010).  You are one of those twelve men.  Tell us how you became part of the book.  What do you think of the book, now that you’ve seen the final product?

The first time anyone heard of or read anything about Richard Ray Miles was in The Dallas Morning News.  I remember that morning as if it was yesterday.  To be arrested for murder and attempted murder, at the age of 19, was a horrific experience, but to wake up Monday morning and read that I was the shooter, in a murder I didn’t commit, tore out my insides.  Mr. Mendenhall, my fight for innocence was not just for me—I knew I was innocent—but for my mom and dad.  I didn’t want the story to be the last thing that my father—a minister in the neighborhood who had to hear accusations about his son—to read.  So, when the book Tested was completed, it was like a dream come true: now Dallas residents could read about MY INNOCENCE. 

You’ve been through a lot.  Would you mind telling us your story?  Start wherever you want to start.

I was born in Dallas to Thelma Malone and Richard Miles.  My parents split when I was young, but not long after my mom met William Lloyd and married him.  I was probably about five when that happened, so to say I was without a father is false.  My dad, William, became a minister when I was still young, so I grew up in a very strict, religious household.  Going to church every day was not out of the ordinary.  For the most part, my older sister, two younger brothers and I had a very good upbringing.

As far as schooling goes, I was very smart and interested in learning.  I went to an academy for middle school and then to Skyline High School, which was one of the most prestigious schools at the time.  When I made it to Skyline, I began to feel something different.  I felt that my parents were way too strict on me.  As young children do, I began to rebel—nothing too extreme, but rebellious nevertheless.  I was kicked out of Skyline at the end of 11th grade and was transferred to Kimball.  Kimball and Skyline were two totally different places to learn.  To be more precise, Kimball was a Hood School; its reputation preceded itself.

By the time I got into Kimball and got ready to take my senior exams, I got a reputation for coming to school drunk.  Mind you, I was not a drinker, so any little thing was not good.  The long and short is that I made it all the way to the 12th grade, but did not graduate.  I left home a little after that, never to be in the streets or in a gang because I was working at McDonalds, and I actually liked the idea of having a job.  All that changed when my friend came to pick me up from my parents’ house.  He asked me about selling drugs.  I had never been introduced to that, and by mere peer pressure, my entire life was turned around.

I struggled on the streets for probably one year, but that was enough to experience a life I will never return to.  On May 15th, I was walking home, not knowing there was a shooting miles away, and I got picked up for a murder and an attempted murder.  I have never shot a gun in my life, nor ever thought about stealing or tried to steal someone’s things by force.  So, I knew I would be going home soon. The whole interrogation lasted probably five or six hours.  Because my friend had driven me home and wasn’t with me when I was walking and got picked up, I gave the detective phone numbers of people who could identify my whereabouts.  My friend had gone to his girlfriend’s place.  That’s why I was walking by myself.  All in all, I gave the detective four phone numbers of people who could verify my whereabouts and confirm that I was not the shooter. The detective left and came back about an hour later.  He said, “Your story checked out, but you killed that man, and you’re going to prison.”  I was lost at that point.

I stayed in the county jail for 17 months before I went to trial.  I was given a court-appointed lawyer. In August 1995, I had a jury trial.  

There were ten witnesses, nine of whom said I was not the shooter.  No weapon was ever found, and the fingerprints that were retrieved were neither mine nor the victims’. One person who was shot testified that I did not look like the shooter, and my alibis came as well.  Nevertheless, I was found guilty of murder and attempted murder and sentenced to 80 years in prison. 

After I had sent out numerous letters and spent 14 years in prison, I was contacted by an organization out of Princeton, New Jersey, that picked up my case and found in the police record an anonymous phone record received before I went to trial.  This record mentioned the real shooter as well as other confidential information.  This stuff had never been turned in.  Based on that and other exculpatory evidence, I was released in October 2009; I was the first non-DNA release under District Attorney Craig Watkins. 

Now I’m awaiting full exoneration, even though the DA and my judge pronounced me innocent. Read the rest of this entry »

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Konrad Graf on Action-Based Jurisprudence

In Austrian Economics, Humane Economy, Humanities, Jurisprudence, Law, Liberalism, Libertarianism, News Release, Politics on August 14, 2011 at 7:54 pm

Allen Mendenhall

Konrad Graf, who, with me, contributes to Prometheus Unbound: A Libertarian Review of Fiction and Literature, has published the following essay in Libertarian Papers:  “Action-Based Jurisprudence: Praxeological Legal Theory in Relation to Economic Theory, Ethics, and Legal Practice.”  Here is the abstract to the piece:

Action-based legal theory is a discrete branch of praxeology and the basis of an emerging school of jurisprudence related to, but distinct from, natural law. Legal theory and economic theory share content that is part of praxeology itself: the action axiom, the a priori of argumentation, universalizable property theory, and counterfactual-deductive methodology. Praxeological property-norm justification is separate from the strictly ethical “ought” question of selecting ends in an action context. Examples of action-based jurisprudence are found in existing “Austro-libertarian” literature. Legal theory and legal practice must remain distinct and work closely together if justice is to be found in real cases. Legal theorizing was shaped in religious ethical contexts, which contributed to confused field boundaries between law and ethics. The carrot and stick influence of rulers on theorists has distorted conventional economics and jurisprudence in particular directions over the course of centuries. An action-based approach is relatively immune to such sources of distortion in its methods and conclusions, but has tended historically to be marginalized from conventional institutions for this same reason.

This piece is striking for a number of reasons, not least of which is the way it came about.  As the Mises Economics Blog explains,

This is an interesting, provocative analysis of libertarian theory that highlights the strength of the Mises Institute’s approach and model of openness. First, this piece was inspired by the author’s participating in a Mises Academy course.

Second, the author is not a professional scholar or academic. In days past such authors–who are often the source of new ideas–would be shut out by credentialism and the iron grip certain institutions had over the few avenues of publication. The open model of the Mises Institute’s Libertarian Papers–rigorously double-blind peer-reviewed but open to private scholars as well as academics, as its focus is on ideas–breaks free of this hidebound model.

Third, the article is 75 pages long, much longer than many journals can accept. But this is no problem for the Libertarian Papers model as it is online, not centered on paper.

To sum up, this provocative piece was stimulated by the Mises Institute’s being on the forefront of technology (Mises Academy), not to mention the gargantuan volume of free, online resource such authors are able to draw on (Mises.org), and then was offered a publishing platform (Libertarian Papers) despite its length and the author’s private, “non-credentialed” status. In my view, this is all to the good and a testament to the heroic work done by the Mises Institute.

Libertarian Papers is edited by Stephan Kinsella.  Visit Kinsella’s website here.  Visit Mises Academy (which inspired Graf’s article) by clicking here.

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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.