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Posts Tagged ‘Aristotle’

Making Legal Education Great Again

In America, Civics, Conservatism, History, Humanities, Jurisprudence, Law, Law School, Legal Education & Pedagogy, liberal arts, Liberalism, Pedagogy, Philosophy, Scholarship, Teaching, The Academy, Western Civilization, Western Philosophy on August 30, 2017 at 6:45 am

This piece originally appeared here and was published by the James G. Martin Center for Academic Renewal.

Legal education has become a surprisingly regular topic of news media for several years now. Most of this commentary has focused on enrollment and matriculation problems, bar passage rates, accreditation standards, student debt, and the job market for recent graduates. These are pressing issues that raise vexing questions for law school administrators, and they warrant the attention they’ve received.

Little attention, however, has been paid to curriculum, except as it pertains to those issues. And not just curriculum, but subject matter within the curriculum.

There are certain subjects—let’s call them “the permanent things”—that always have and will interest scholars of the law because of their profound influence on legal norms and institutions: history, philosophy, literature, and theology. Whether they belong in law schools or some other department, whether they prepare students to become practice-ready or not, these topics will remain relevant to subsequent generations of jurists and legal scholars. There will be a place for them somewhere within the world of legal learning and letters.

Law school faculty and research centers have expanded over recent decades to include studies of these humanistic fields. As long as these fields populate law school, there’s a felt need for rigorous liberal education in them.

Ordered liberty in the United States has historically rested on a commitment to religious faith and pluralism, fidelity to the rule of law, and traditional liberties grounded in the conviction that all humans are created equal and endowed by their creator with certain inalienable rights. These values characterize the American experiment. Our society is built on them, and its continued vitality depends upon maintaining and promoting our commitment to them.

Yet these values are ridiculed and attacked in universities across the country. When they’re taught, they’re often treated as products of a morally inferior era and thus as unworthy of our continued respect. And because these values aren’t seriously or rigorously taught, students lack working knowledge about them and are therefore unprepared for the kind of civic engagement that young people desire and demand.

A decline in civic education has caused misunderstanding and underappreciation of our foundational norms, laws, and liberties. Religious liberty is mischaracterized as license to harm and on that basis is marginalized. Economic freedom is mischaracterized as oppression and is regulated away. Well-positioned reformers with good but misguided intentions seek to fundamentally transform the American experiment from the ground up. They work to limit foundational freedoms and increase regulatory power.

Without well-educated lawyers and civil servants equipped to resist these reformers, the transformation of America will result in the destruction of the freedoms enabled by our founding generation. We cannot allow this to happen. The Blackstone & Burke Center for Law & Liberty at Thomas Goode Jones School of Law, for which I serve as executive director, therefore seeks to educate the legal community in such areas as natural law, natural rights, religious liberty, economic freedom, freedom of speech, freedom of association and assembly, and other liberties that find expression not just in the American but in the larger Western jurisprudential tradition.

I define “legal community” broadly to include law students, law professors, public policy institutes, political theorists, judges, and businesses in addition to practicing lawyers. Because my center is housed in a law school, it’s well positioned to instruct future lawyers while bringing together faculty from different disciplines who are steeped in liberal education.

Numerous organizations promote these values in the political arena, but few attempt to reconnect foundational values with the law. The Blackstone & Burke Center aims to fill this gap by bringing together scholars and students committed to American constitutional government and the common law foundations of our cherished liberties. Our target audience will include law students, judges, and civics groups.

For law students, we offer the Sir Edward Coke Fellowship. We’ve accepted our inaugural class of fellows, who, beginning this fall, will study formative texts in Western jurisprudence in monthly seminars that supplement their core coursework. Next semester, we’ll read and discuss works by Aristotle, Grotius, Hayek, Alasdair MacIntyre, and Robert P. George. The center will be a key networking opportunity for fellows seeking careers at foundations, think tanks, universities, and public policy organizations.

Fellows will also help to organize a judicial college for state jurists. Thanks to the Acton Institute, Atlas Network, and the Association for the Study of Free Institutions, the Blackstone & Burke Center possesses the grant money needed to host its first judicial college in October. Professor Eric Claeys of Antonin Scalia Law School at George Mason University will direct this event, the readings for which include selections from not only cases (old and recent) but also Aquinas, Locke, Blackstone, and Thomas Jefferson. The readings for judges are extensive, and the seminar sessions are meant to be intensive to ensure that judges get as much out of the experience as possible.

The center will also provide basic civics education to local communities. For several years, the Intercollegiate Studies Institute issued reports on the poor state of civic literacy in the United States. The National Association of Scholars recently issued a detailed report on the inadequacies and politicization of the “New Civics.” The current issue of Academic Questions, moreover, describes the sorry state of civics knowledge in the United States and the tendentious methods and institutions that teach political activism rather than deep learning.

Against these alarming trends, my center organized and hosted a reception featuring a U.S. Library of Congress interactive Magna Carta exhibit, which was displayed in the rotunda of the Alabama Supreme Court for three weeks and now remains in the possession of the Alabama Supreme Court Law Library. The reception included prominent judges, business and university leaders, lawyers, and the general public.

For example, Chief Justice Lyn Stuart of the Alabama Supreme Court and Judge William “Bill” Pryor of the Eleventh Circuit Court of Appeals delivered remarks about Magna Carta during the reception, and young people conversed casually with judges about the legal system, federalism, and the challenges and opportunities facing the legal profession in the 21st century. This fall, the center is cosponsoring an event with the Foundation for Economic Education on the campus of Auburn University to explore the relationship between law and markets, and I hope to see as many high-school students as college students in attendance.

Legal education is strikingly different today than it was when Thomas Jefferson apprenticed under George Wythe, or when Abraham Lincoln read law before receiving from a county circuit court certification of his good moral character, then a prerequisite to practicing law.

Nevertheless, legal education looks much the same as it did in the late nineteenth century, when Christopher Columbus Langdell, dean of Harvard Law School, instituted a curriculum, pedagogy, and case method that came to characterize “the law school experience.” If there’s been a paradigm shift, it’s been toward more practical aspects of legal education such as clinical programming. Yet many lawyers remain ignorant of the history and philosophical conventions that shaped their profession over centuries.

The Blackstone & Burke Center for Law & Liberty is a modest corrective in that it doesn’t seek to remake legal education or demolish longstanding practices and procedures in one fell swoop. Rather, it does what it can with the resources and tools available to strive to renew an America where freedom, opportunity, and civil society flourish. In the long run, I think, these reasonable efforts will have powerful effects and far-reaching benefits, both within the legal academy and beyond.

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What Is the Rule of Law, Anyway?

In America, Civics, Economics, History, Humanities, Jurisprudence, Law, Libertarianism, Philosophy, Western Civilization, Western Philosophy on June 7, 2017 at 6:45 am

This piece originally appeared here in The Intercollegiate Review.

“Donald Trump Could Threaten U.S. Rule of Law, Scholars Say.” So declared an ominous headline in the New York Times roughly one year ago. MSNBC likewise ran a suggestive interview in January entitled, “Will the ‘rule of law’ survive under Trump?”

Such alarming commentary presupposes the existence of the rule of law in the United States and appears designed to portray Donald Trump as a threat to that rule. In March, however, Reason republished and retitled a curious piece that first appeared in The Week: “The Immoral ‘Rule of Law’ Behind Trump’s Deportation Regime.” The implication of this revised title (the original read, “How today’s pro-immigrant activists are adopting the tactics of abolitionists”) is that Trump is staunchly committed, rather than antagonistic, to the rule of law.

So which is it? Does Trump jeopardize or safeguard the rule of law?

The answer, if we assume the rule of law is in full force and effect in the United States, is probably situational: In some cases, Trump undermines the rule of law, while in others he reinforces it. But to know for sure, and to appreciate the difference, one must first understand what the rule of law is.

The rule of law encompasses multiple legal principles, chief among them is that the rules that govern society apply equally to all individuals within the prescribed jurisdiction. No person, not even the king or the president, is above the law. Law, not the arbitrary commands or categorical dictates of human rulers, is supreme.

Thus, the opposite of the “rule of law” is the “rule of man,” or the idea that the formal, discretionary imperatives of a powerful sovereign necessarily bind his subjects and subordinates.

The rule of law is a philosophical concept and a liberal ideal that gained ascendency during the Enlightenment (think Locke and Montesquieu) but that can be traced to antiquity (think Aristotle). The British jurist Albert Venn Dicey listed as its prime characteristics:

  1. “the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power”;
  2. “equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary Law Courts”; and
  3. “a formula for expressing the fact that with us the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the Courts.”

These suggest that the rule of law is a bottom-up rather than a top-down system of governmental ordering based on already enunciated and widely accepted precepts. The operative rules that regulate the normative order of human activity in a free society under the law are rooted in custom and tradition. A ruler or judge is, in such a happy jurisdiction, responsive to the controlling principles that are antecedent to his or her political election, appointment, or empowerment.

F. A. Hayek identified the rule of law as a defining attribute of the common-law system, which, in his view, stood in contradistinction to the civil-law system that instituted vast codes and complex administrative agencies to superintend the unvigilant populace. Legislatures, of course, are accountable to the people through elections; thus, their enactments must reflect extant social practices and beliefs to satisfy voters. Administrative agencies, with their extensive rulemaking powers, are not so accountable. They are by design removed from legislative procedures and thus isolated from voters.

Hayek saw the common law as a decentralized form of social organization, and civil law as centralized planning and design. The rule of law, he thought, inhered in the former system but not in the latter. “The possession of even the most perfectly drawn-up legal code does not, of course, insure that certainty which the rule of law demands,” he warned, “and it therefore provides no substitute for a deeply rooted tradition,” which the common law embodied.

The rule of law encapsulates other seminal concepts as well: the predictability, consistency, reliability, neutrality, and clarity of working rules, for instance. These, however, are in some way derived from the principal teaching that, in Hayek’s words, “all rules apply equally to all, including those who govern.” By any appreciable standard, the United States has not lived up to this high ideal in light of the growth of sovereign immunity and qualified immunity for government officials, the disparate treatment of individuals based on their political power and connections, and, among others, the rapid rise of the administrative state.

Lately the rule of law has become associated with a law-and-order mentality that emphasizes punishment, severity, and rigidity as touchstones of the legal system. The rule of law, on this view, is the instantiation of brute force or the execution of raw power, or perhaps an ideological construct meant to condition the populace into servile submission to government authority.

This understanding of the rule of law has some merit: John Hasnas’s article “The Myth of the Rule of Law” explains how rule-of-law rhetoric indoctrinates people into casual acceptance of the harmful government monopoly on the institutions of law. He decries the gradual acquiescence of ordinary people to, in his words, “the steady erosion of their fundamental freedoms” in the name of the rule of law.

But the rule of law as an ideal, rather than a felt reality, aims to preserve rather than imperil fundamental freedoms. Perhaps there are those with ulterior motives who champion the rule of law to achieve concealed goals; perhaps government in its current form cannot actualize rule-of-law ideals. When rule-of-law discourse does serve the repressive function that Hasnas describes, it is unduly coercive and abusive. In its proper form, and as it was originally understood, however, the rule of law aspired to restrain government power.

In the minds of yesteryear patriots like Thomas Paine, the United States epitomized the rule of law. He averred that “in America the law is king,” whereas “in absolute governments the king is law.” He said, as well, that “in free countries the law ought to be king; and there ought to be no other.”

If the law is no longer king in America, it’s not because of Trump. That he enjoys immense and immeasurable power is evidence of the extent of the decline of the rule of law in this country.

Having flouted and subverted the rule of law for decades, the radical elements of the progressive left in the United States now face the inevitable consequence of their concerted activity—namely, that their coercive methods and institutions may be turned against them, and the authoritarian structures they created may service policies at odds with their own.

We can all learn a lesson from this revealing irony.

Review of James Seaton’s “Literary Criticism from Plato to Postmodernism”

In Academia, Arts & Letters, Book Reviews, Books, Essays, Fiction, Historicism, History, Humanities, Literary Theory & Criticism, Literature, Pedagogy, Philosophy, Poetry, Politics, Postmodernism, Rhetoric, Scholarship, Western Civilization, Western Philosophy, Writing on December 31, 2014 at 8:45 am

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This review first appeared here in The University Bookman.

Back when I was a pimple-faced graduate student in English and law, I ordered a book from Amazon titled Cultural Conservatism, Political Liberalism: From Criticism to Cultural Studies. The book had been out awhile, but I had only recently come across an intriguing piece by its author, James Seaton, a professor of English at Michigan State University. I read my purchase in earnest and then dashed off a complimentary email to Seaton days later. He responded, and we struck up a dialogue that continued for several years. I once visited him at the Russell Kirk Center for Cultural Renewal, where he spoke to a small crowd about George Santayana. He had just edited two of Santayana’s seminal essays for Yale University Press and had recruited Wilfred M. McClay, John Lachs, and Roger Kimball to contribute to the edition. We got along swimmingly, and Annette Kirk ensured that he and I had time alone to discuss whether I should apply to a doctoral program in English or continue down the path of the law.

Literary Criticism from Plato to Postmodernism has all the themes and qualities that first drew me to Seaton. It is a collection of Seaton’s latest essays and reviews revised and synthesized into a comprehensive case for humanistic inquiry. Amplifying his arguments from Cultural Conservatism, Political Liberalism and reformulating his principles about the value of literature to society, Seaton continues to undercut the discipline of cultural studies, which he decries for its “obligatory leftism.” His leading contribution—the subject about which he stands to forge new directions in the field of literary criticism—is to revitalize old contributions, namely, the humanistic tradition as defined by Irving Babbitt and as represented by Aristotle, Alexander Pope, Samuel Johnson, Matthew Arnold, Henry James, Edmund Wilson, Lionel Trilling, and Ralph Ellison. Chapters Two and Four are profitable beginnings of this project because they explain which critics (William Wordsworth and Samuel Taylor Coleridge) and which schools of criticism (Romanticism, Marxism, and the New Criticism) fall outside the humanistic tradition. These chapters, Four especially, are exciting, provocative, and significant. They supply the basis and much of the substance for the rest of the book and suggest that literature is not an agent of ideology, nor literary theory a master key that unlocks the door to grand solutions for political, scientific, and economic problems.

For those who are uninterested or unversed in literary criticism, however, reading Seaton will be like watching strategic athletic maneuvers—swing! parry! dive!—without a sense of what’s at stake in a sporting match whose tactics and rules are unknown. From the start he frames his argument with Plato and Aristotle, but today’s graduate students in English will be unclear what these men mean for the larger project of humanism or why they matter to contemporary audiences. With the exception of the Norton anthologies, most accounts of literary criticism in popular anthologies begin with Nietzsche in the late nineteenth century or with the New Critics in the early twentieth. The pinnacle of influence for these late critics roughly coincides with the development of English departments as institutions. To begin at the beginning—with the Greeks—will disorient those trained to look back at the literary canon through the prism of “contemporary” theories.

This remark is not a reproach of Seaton but of current literary studies; the chief merit of Seaton’s methodology is to demystify literary studies and to affirm there’s nothing new under the sun: the latest theories have definite antecedents (not necessarily good ones) and can be mapped by their continuity with other methodologies. Marxists of the Frankfurt School such as Herbert Marcuse, for example, follow in the wake of Plato: “Just as Plato had insisted on the necessity of censorship in his ideal Republic, Marcuse argued that suppression of free speech was required in the twentieth century for the establishment of what he considered true freedom.”

Seaton’s knack for classification emerges forcefully in the opening chapter. Here he arranges under three heads the whole history of literary criticism: the Platonic, the Neoplatonic, and the Aristotelian. He defines literary criticism as “a continuing conversation” among these three traditions inspired by just two Greek men. Adhering to the third category, the Aristotelian, which he calls humanistic, Seaton rejects the first because it questions the aesthetic value of literature, distrusts the sensory effects of literature, and treats great works as mere symptoms of ideological structures or institutions. “The philosophy of the Republic,” Seaton explains, “leaves no room for judging poetry according to literary excellence; all that counts is its political and social impact.” Seaton rejects the second, the Neoplatonic, for defending literature and poetry on the narrow and quixotic “basis of the moral and spiritual elevation it made possible.”

By contrast, Seaton submits, the “humanistic view of literature” might be “a middle way between the Platonic condemnation of art and literature and the Neoplatonic elevation.” The humanistic view “remains Aristotelian” because it considers “literature as a source of insight about human life” and is willing “to judge grand theory by the norms of common sense.” While Plato would expel poetry and theater from his ideal Republic, segregate poetry from philosophy, and train his Guardians to submit their virtues to the service of the State, Aristotle calls for “individual judgment about the literary merit and relevance to human life of particular works from audiences and certainly from would-be critics.” Neoplatonist overstatement about the manner in which “poetry brings us closer to the divine” also finds no place in Aristotelian humanism, which modestly maintains that literature “can tell us important things about human life but little about the universe.” Humanists write of the person as the person: they turn to literature to learn and to teach how to live well and wisely without fancying transcendental essences or utopian abstraction. The very crux of Aristotelian humanism is that “the importance of literature is linked to the significance of human life itself,” not to the political, ideological, or religious convictions that a work of literature implicates.

The triadic paradigm (Aristotelian, Platonist, Neoplatonist) may seem reductive, and indeed it is, but such reduction establishes recognizable classifications that encompass a diversity of interests and approaches while shaping a vocabulary for arranging distinctive properties into taxonomies to set apart certain authors and texts. Despite his skill for categorizing and simplifying schools of literary criticism, Seaton is steadfast that literary criticism is distinct in function and form from science: the former is as much an art as the art it explicates, whereas the latter is an empirical discipline that ascertains the natural rules of the phenomenal world by gathering and testing concrete data, building consensus among experts, and denominating general propositions to describe observable events. The contrast is not as sharp or essentialist as I have portrayed it—the pragmatic tradition of Peirce, James, and Santayana falls somewhere between art and science—but the fact that literary criticism has splintered into innumerable, contradictory schools suggests that the disparate methods and judgments of literary critics are not derived from shared conditions or by recourse to the same techniques.

Criticism of the humanistic variety championed by Seaton is found today not in academic journals but in popular literary reviews and journals such as this one. It has the important civic function of educating and inspiring mass audiences. Humanism rejects the “implicit promise” of cultural studies “that adepts gain the ability to make authoritative pronouncements about all aspects of human life without going to the trouble of learning the rudiments of any particular discipline.” Humanism, instead, engages in public debate without resorting to naked polemics; its practitioners understand or at least appreciate the complexity of the cultural norms and standards of readers outside the ivory tower. Professors in the academy, on the other hand, disconnected from the lifestyles and manners and conventions of the general public, tend to write themselves into little corners, retreating from the potential scrutiny of educated laypeople and insisting that true scholarship “requires specialization on topics specific enough to allow for the production of new knowledge, not open-ended conversation about questions to which no definitive answer is possible.” Seaton’s model of humanism advocates a different errand: “to make available to the larger culture the testimony of literature on human life … by accurately assessing the literary merit of the witness.”

They waste it that do state it with no style. Seaton, accordingly, makes short work of the “dominant theorizing” that lacks “literary distinction,” and he does so with his own unique style that remains as accessible to the educated layperson as it is to professional scholars of literature. His is not the delightfully repetitious, grandstanding prose of a Harold Bloom or Richard Poirier—the type of prose that, in its very makeup, shouts down the technical writing of hyper-professionalized humanities scholarship. Yet Seaton can turn a phrase with the best of them. Although it is a subsidiary point, the notion that a critic should write in a mode many people will enjoy is the literary equivalent to popular sovereignty: the common reader, not the expert, ought to determine which works continue to be read and therefore which become canonized. Like his guides Ralph Ellison and Dwight Macdonald, Seaton, mindful of his audience, takes pains to avoid jargon even as he discusses such theorists as Max Horkheimer and Theodor Adorno whose writing is riddled with esoterica.

Seaton ends with a hopeful note: “Although the task of addressing the arguments of the dominant contemporary theories is important, the decisive answer [to the question what to do now that the dominant theories dismiss the importance of literature to life and thought] will come from the literary criticism of the twenty-first century that conveys to the general public the pleasures and insights that poems, plays, and fiction continue to make available to all those willing to attend.” Let’s hope the coming decades yield critics like Edmund Wilson and Lionel Trilling, who were “members of a humanistic tradition capacious enough to study the connections between literature and society while also insisting that poems, plays, and novels should be judged on their own merits as works of art.”

It isn’t that the political and social sphere should be off-limits to critics, only that critics should, as Seaton does, subordinate their political and social presuppositions to aesthetic judgments, the most discerning of which account for the value of imaginative literature to plain living and high thinking. The best criticism helps us to understand how literature makes life better, more meaningful, and more fulfilling. Simple as it sounds, this proposition is tremendously complex because of the tremendous complexity of life itself. Held to his own high standards, Seaton succeeds: his chapters force you to consider what role literature has played in your own development, and how that role might play out in the lives of others. Good literature is more than a material object; it’s a way of living, a crucial check on those who purport to know it all with utter certainty.

Are Lawyers Illiterate?

In Arts & Letters, Books, Essays, History, Humanities, Imagination, Law, Literature, Philosophy, Western Civilization, Western Philosophy on September 3, 2014 at 8:45 am

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This piece originally appeared here in The Imaginative Conservative.

Webster’s defines “intelligent” as “endowed with intelligence or intellect; possessed of, or exhibiting, a high or fitting degree of intelligence or understanding.” This modern understanding of “intelligence” as an innate disposition or propensity differs from earlier understandings of the word as meaning “versed” or “skilled.” Milton, for instance, in Paradise Lost, calls the eagle and the stork “intelligent of seasons,” by which he meant that these birds, because of their experience, were cognizant of the seasons.

The older meaning of “intelligent” has less to do with native endowment than it does with gradual understanding. The older meaning, in other words, is that intelligence is acquired by effort and exposure rather than fixed by biological inheritance or natural capacity: one may become intelligent and is not just born that way; intelligence is a cultivated faculty, not an intrinsic feature.

Because of the altered signification of “intelligent,” we use today different words to describe the older meaning: erudite, knowledgeable, informed, traveled, educated. These words seem to us more palatable than their once-favored predecessors: civilized, polished, cultured, genteel, refined. I myself prefer words like “lettered” or “versed” that imply a knowledge of important books and the humanities generally.

The most apt term in this regard is also the most butchered in the current lexicon: “literate.” Contrary to what appears to be the prevailing assumption, “literate” does not simply refer to an ability to read. According to Webster’s, “literate” means “instructed in letters, educated; pertaining to, or learned in, literature.”

Not just to read, but to read well and widely—that is how you become “literate.” Accepting this traditional meaning, I question how many lawyers are or can become literate.

In the 1980s, Ithiel de Sola Pool, a professor of communications and media, determined that the average American adult reads approximately 240 words per minute. At that rate, it would take a person around 2,268.36 minutes (or 37 hours, 48 minutes, and 21.6 seconds) to read War and Peace, which comes in at 544,406 words. If that sounds encouraging—ever wanted to read War and Peace in a day-and-a-half?—consider these offsetting variables: reading at one sitting slows over time; attention span and memory recall are limited; the mind can be exercised only so much before it requires rest; people cannot constantly read for 2,268.36 minutes without going to the restroom or eating or daydreaming, among other things; a healthy lifestyle entails seven to nine hours of sleep per day; large portions of the day are spent carrying out quotidian operations, including showering, cooking, brushing teeth, commuting to and from work, getting dressed and undressed, answering phone calls, reading emails, cleaning, filling out paperwork, paying bills, and so on. Pool, moreover, was not using a text like War and Peace to gather his data, and his subjects were not writing in the margins of their books, taking notes on their laptops, or pausing to engage others in critical conversations about some narrative.

The National Association for Legal Career Professionals has estimated that lawyers at large firms bill on average 1,859 hours per year and work 2,208 hours per year. These numbers are more troubling in view of the fact that large law firms require their attorneys to attend functions with clients and potential clients, time that is neither billable nor considered “working hours.”

If there are around 8,760 hours in a year, and if a healthy person spends about 2,920 of those sleeping, there remain only around 5,840 hours per year for everything else. If “everything else” consisted of nothing—nothing at all—except reading War and Peace, then a lawyer at a large law firm could read that book about 154 times a year. But of course this is not possible, because no person can function as a machine functions. Once the offsetting variables are accounted for—and I have listed only a few that immediately spring to mind, and these for people with no families—it becomes apparent that it is nearly impossible for a lawyer to read more than about four lengthy or difficult books each month, and only the most diligent and disciplined can accomplish that.

Numbers can lead us astray, so let us consider some anecdotal evidence—my own testimony—which suggests that most lawyers are illiterate, or perhaps that lawyers have to try really hard to become literate or to avoid losing their literacy.

I am a lawyer, one who considers himself literate but increasingly in danger of becoming illiterate the longer I remain in my chosen profession. My hope is that literacy stays with you, that if you “frontload,” as it were, you can build a wide enough base to allow for slack in later years.

In 2013, I made an effort to overcome the time restrictions of my job to read through several canonical texts of Western Civilization. For the most part I undertook a book a week, although, because of scheduling constraints, I read what I took to be the most important or most famous sections of the lengthier books and volumes such as Aquinas’s Summa Theologica, a work that would require years of study to fully appreciate. I found myself, on many Thursday evenings, reading so rapidly to finish the text at hand that I could not enjoy myself or absorb the nuances and complexities established by the author.

Reading only one book a week when you are intelligent enough to read more is shameful and disgraceful, the sacrifice of a gift. During graduate school, I could read five or six books a week and can recall more than one week when I read a book a day. But each day I spend working as a lawyer, I am less able to digest the books I consume and to consume the books necessary for intellectual nourishment.

Economists use the term “opportunity cost” to refer to a choice to forego options or to pursue the benefits of one course of action rather than another. The cost of becoming a lawyer is giving up literacy or making its attainment more difficult; the gain, in theory, is a higher salary and financial stability. Whether the gain neutralizes the loss depends on one’s preferences. I myself would not trade for a million dollars the opportunity to read Tolstoy or Shakespeare or Aristotle or Santayana.

To achieve the admiration enjoyed by lawyers, other professionals must do their jobs several times better. Happily, this is not a high bar. That is why people prefer the company of doctors. It is not that lawyers are incompetent or unskilled; it is that they do not put their faculties to good use. All people think, but it is only by degree and by the object of their thought that the literate are distinguished from the illiterate. To put their minds to humane use would improve lawyers’ reputations considerably and call into question that axiom popularized by one of Dickens’s characters: “If there were no bad people, there would be no good lawyers.”

The way I see it, you can spend all your life billing clients and pushing paper under great stress, by investing your talents and resources in prospects that yield no intellectual returns, or you can spend your life establishing high standards of reason, understanding, and creativity by studying the most important and influential works that humans have produced through the ages. You can spend all your time transacting business, prosecuting and defending lawsuits, and preparing briefs and memoranda, or you can cultivate discernment and understanding. The options are not mutually exclusive: I have overstated to draw a sharp contrast, but the point remains.

Do not misunderstand me: working hard and earning profits are not only good and healthy activities but personally fulfilling. Yet they must be supplemented with humane contemplation and the private study of important ideas. Industry and innovation are requisite to a high quality of life, a robust economy, and human flourishing—and they make possible the time and leisure that enable some people to create great art and literature. Not everyone can be literate, and that is a good thing.

It is just that many lawyers never learn to live well and wisely, to place their seemingly urgent matters into perspective, or to appreciate, as Aristotle did, the virtues of moderation. This failure is directly related to lawyers’ neglect of history and philosophy and to their suppression of the moral imagination that works of good literature can awaken. This failure, as well, puts lawyers at a distinct disadvantage when it comes to spiritual, moral, and intellectual pursuits. As Mark Twain quipped, “The man who does not read good books has no advantage over the man who cannot read them.”

Lawyers are illiterate, most of them anyway. Trust them to handle your real estate closings or to manage your negligence claims, to finalize your divorce or to dash off angry letters to your competitors, but do not trust them to instruct you on plain living and high thinking. There are exceptions—Gerald Russello and Daniel Kornstein are two—but generally lawyers are not to be consulted on matters of importance to the soul. For those, we have good books, and with luck, the people who write and read them.

What Crisis? Law as the Marriage of Science and the Humanities

In Academia, Arts & Letters, Humanities, Jurisprudence, Law, Law-and-Literature, Legal Education & Pedagogy, News and Current Events, Oliver Wendell Holmes Jr., Philosophy, Scholarship, The Academy on March 12, 2014 at 8:45 am

Allen 2

This week the Association for the Study of Law, Culture & the Humanities convened to consider this question: “How will law and humanities scholarship fare against the pressure of the science and technology paradigm that has now permeated the institutional frameworks of academia?”  The question implies an adversarial relationship between science and the humanities, or law-and-humanities.  The division between science and the humanities as academic disciplines, however, is not yet 150 years old; it is misguided to pit “law-and-humanities” (a signifier that did not exist a few decades ago) against the “science and technology paradigm that has now permeated the institutional frameworks of academia” (another quotation from the conference program).  We do not have to go back to Plato or Aristotle or Galileo or Descartes or Spinoza or Da Vinci or Locke or Hume or Rousseau or Kant or Newton or Adam Smith or Benjamin Franklin or Thomas Jefferson or Thoreau to see that what we call the humanities has not, traditionally, been divorced from the sciences—that, in fact, the humanities and the sciences are mutually illuminating, not mutually exclusive.

In America, more recently, the classical pragmatists—in particular C.S. Peirce and William James—sought to make philosophy more scientific, and in this endeavor they were mimicking the logical positivists in Britain.  Some of the most famous minds of the 20th century worked at the intersection of the humanities and science: Freud, Einstein, Michael Polanyi, Karl Popper, Jacques Lacan, F. A. Hayek, and Noam Chomsky, to name a few.  Lately we have seen scientific thinkers as wide-ranging as Steven Pinker, E. O. Wilson, Jared Diamond, and Leon Kass celebrate or draw from the humanities.

A review of the conference abstracts suggests that most presenters will be considering this question from the political left, but their concerns are shared by many on the right, such as Roger Scruton, who recently took to the pages of The New Atlantis to address this topic in his article “Scientism in the Arts and Humanities.”  Nevertheless, forcing the separation of science and the humanities does not strike me as prudent.

By encouraging the humanities to recognize its scientific heritage and to recover its scientific methodologies, the academy would be correcting decades of wandering.  Science is indispensable to the humanities, and vice versa; the two work in concert.  The findings in one influence the findings in the other.  Evidence of this reciprocity in the context of legal studies is especially striking in America during the late 19th and early 20th century, when the law often was associated with scientific disciplines rather than with the humanities.  At this time, the theories of Charles Darwin and his progeny helped to explain the common law tradition while influencing the way that law was taught in law schools and examined by judges and most notably by Oliver Wendell Holmes, Jr.

The scientific paradigms in vogue among legal thinkers at the turn of that century were neither uniform nor monolithic.  For instance, Christopher Columbus Langdell’s push to make legal education more scientific was different from Holmes’s use of Darwinism to describe the common law.  Rather than teasing out the distinctions between various scientific approaches to the law during the late 19th and early 20th century America, however, I would look at these scientific approaches as part of the same general project and as a reminder of how the humanities and the sciences can participate to bring about theoretical and practical insights.  It might be that, of all disciplines, law is the most revealing of the participatory nature of science and the humanities and, therefore, provides the best justification for instrumental and scientific approaches to humane studies.

There are groups within the humanities that resent the scientific disciplines for the funding and privilege those disciplines enjoy in the academic marketplace, but at least part of this resentment is misplaced.  The fault lies partially with the scientists who mistake merit for value: it is not that the sciences enjoy more funding and privilege because they have more merit—the academy is not a meritocracy—but it is that they have more value to consumers and the public writ large.  It may well be that the humanities have more merit, but unless consumers begin to value merit, the meritorious will not necessarily prevail in the market.  

Plato and Natural Law Theory

In Arts & Letters, Communism, Humanities, Jurisprudence, Law, Literary Theory & Criticism, Literature, Philosophy, Western Philosophy on March 27, 2013 at 8:45 am

Allen Mendenhall

Natural law theory, at its essence, is not far removed, conceptually at least, from Plato’s theory of forms.  According to Plato, only the philosopher kings are equipped and trained intellectually to comprehend the true forms as opposed to the sensible forms that are readily understandable in the phenomenal world.  These philosopher kings can grasp the Form of the Good, for instance, which is the fountainhead from which flow all true forms, including knowledge, truth, and beauty.  But how are we to know who these philosopher kings are?  How are we to distinguish them from charlatans?  And why should the polis uncritically accept the supposedly sound judgments and determinations of those who cannot prove to us their purportedly superior faculties?

There is no ideal city, no Platonic Utopia, nor even a realm approaching the character of Magnesia.  Plato’s communistic fantasies have never been achieved,[1] and the disenchantment one senses in The Laws differs markedly from the tone and confidence exuded in The Republic. It is as if Plato, having aged, realized the dreaminess of his younger vision in The Republic and wished to correct the record, even though he did not go far enough.  At least in The Laws he acknowledged that the first principle of politics is to attain peace; the absence of military conflict ought to be the chief aim of the legislator; judges are another matter.

Plato seems to have continued to admire tyranny, despite his criticism of tyrants in The Laws, for elsewhere in that work he discusses how leaders ought to create an obedient disposition among the citizens.  Commonplace though that proposition may sound, it suggests that the State and its politicians should condition citizens to act for the good of the State.  The problem is that the State is made up of those who live off the citizens, so unchecked obedience to the State means that the citizens ensure their perpetual subordination to those who exploit citizen labor.  It is little wonder that the Platonic State devotes itself to educating the young, for the State must guarantee that there are future generations of uncritical followers to take advantage of.

This is not to suggest that Plato’s works are without truth, only that they are underdeveloped and often misguided.  Aristotle seems to have thought so, too.  The free polis is a multifaceted collection of networks bound together by the voluntary acts of free agents whose rules of habit and exchange exist separately from legislative fiat.


[1] Aristotle himself recognizes that Plato lacks a proper understanding of unity because Plato treats it in terms of property ownership because it is contracted by experience.  “[A]though there is a sense in which property ought to be common,” says Aristotle, “it should in general be private.  When everyone has his own separate sphere of interest, there will not be the same ground for quarrels; and they will make more effort, because each man will feel that he is applying himself to what is his own.” Aristotle, The Politics (Translated by Ernest Barker; Revised with an Introduction by R. F. Stanley). Oxford and New York: Oxford University Press, 1995. P. 47.

Flourishing and Synthesis

In Uncategorized on February 6, 2013 at 8:45 am

Allen Mendenhall

The following review first appeared here in The Journal of Ayn Rand Studies.

Flourishing and Happiness in a Free Society: Toward a Synthesis of Aristotelianism, Austrian Economics, and Ayn Rand’s Objectivism

Edward W. Younkins

Lanham, Maryland: University Press of America, 2011

That Edward W. Younkins is well and widely read is apparent in light of the diverse, mutually illuminating subjects he brings together in this short but impressive book: Aristotle, Ayn Rand, and the Austrian economists Carl Menger, Ludwig von Mises, and Murray Rothbard. These thinkers, and the schools they represent, are participatory, not wholly separate or distinct, in their celebration of capitalism. Each thinker has, to be sure, his or her own colorful methodologies and idiosyncrasies; but the differences among them are often overstated and under-analyzed, or treated with such closed minded certainty that insistences on ideological purity preclude searches for significant commonalities.

The ideas championed by these thinkers are not only reconcilable, Younkins suggests, but complementary and profoundly, sometimes intimately, connected. “By combining and synthesizing elements found in Aristotle’s writings, Austrian Economics, Ayn Rand’s philosophy of Objectivism, and in the writings of neo-Aristotelian classical liberal philosophers of human flourishing,” Younkins explains, “we have the potential to reframe the argument for a free society into a consistent reality-based whole whose integrated sum of knowledge and explanatory power is greater than the sum of its parts” (16). In an era of groupthink and infighting among those who profess individualism and liberty, reason and freethinking, the clarification of intersections between various lines of individualist thought is happy indeed. It’s refreshing to read a book that aims to build rather than demolish, coordinate rather than exclude. Differences of opinion are important, and there are certain issues on which reasonably and rationally minded people—Aristotelians, Objectivists, and Austrian economists included—will disagree. But differences of opinion are not all that matter.

Truth matters; knowledge matters; the future matters. To the extent that this book integrates the shared ideas and vocabularies of different thinkers, it, too, matters a great deal. It is, after all, through shared ideas and vocabularies, arrived at independently, over time, in disparate times and places, that individuals glean and confirm truth. Younkins seeks, to this end, nothing less than a reevaluation of existing paradigms in pursuit of perennial themes reflecting and describing truth. His is a work of synergy and fusion; his is a work of revivification.

Flourishing and Happiness in a Free Society opens with a “Preface” and an “Introduction” written by Younkins. Readers of this journal will not find anything original or surprising here. These sections, while noteworthy, merely lay the foundation for what is to come. They contain no footnotes, but provide extensive recommended reading lists and summarize unifying premises among the book’s principal foci: Aristotle, Rand, Menger, Mises, and Rothbard. In sweeping strokes, Younkins explains that later thinkers depended upon and revised earlier thinkers—that Rand, Menger, and Mises, for instance, borrowed from Aristotle even as they modified and reworked Aristotle. In conjunction with the “Conclusion,” which recapitulates the most important theses and arguments of the book, these sections “bookend,” as it were, the more substantive, detailed, and thorough chapters. Read the rest of this entry »

My Reading List for 2013

In Arts & Letters, Books, Creativity, Fiction, History, Humanities, Law, Literature, Novels, Philosophy, Politics, Western Civilization, Western Philosophy, Writing on December 12, 2012 at 8:45 am

Allen Mendenhall

Editorial Note (April 15, 2013):  At this point in the year, I have already discovered flaws in this list. For instance, I gave myself two weeks to read Augustine’s Confessions and one week to read Aquinas’s Summa Theologica.  I should have done the reverse.  Summa Theologica may have required more than two weeks to read, since I found myself rushing through it, and it is not a book through which one should rush.  My schedule has forced me to speed read some texts in order to avoid taking shortcuts.  Some of the texts on this list will therefore appear on my list for next year, so that they get the treatment and consideration they deserve.

2013 will be a good year for reading.  I’ve made a list of the books I’m going to undertake, and I hope you’ll consider reading along with me.  As you can see, I’ll be enjoying many canonical works of Western Civilization.  Some I’ve read before; some I haven’t.  My goal is to reacquaint myself with the great works I fell in love with years ago and to read some of the great works that I’ve always wanted to read but haven’t.  I wouldn’t go so far as to say that everybody ought to read these works, but I do think that by reading them, a person will gain a fundamental understanding of the essential questions and problems that have faced humans for generations.

Some works are conspicuous in their absence; the list betrays my preferences.  Notably missing are the works of Shakespeare and the canonical texts that make up the Old and New Testament.  There’s a reason for that.  I’ve developed a morning habit of reading the scriptures as well as Shakespeare before I go to work.  If I’m reading these already, there’s no need to add them to the list, which is designed to establish a healthy routine.  What’s more, the list comes with tight deadlines, and I’m inclined to relish rather than rush through the Bible or Shakespeare.

Lists provide order and clarity; we make them to reduce options or enumerate measurable, targeted goals.  Lists rescue us from what has been called the “tyranny of choice.”  Benjamin Franklin made a list of the 13 virtues he wished to live by.  What motivated him is perhaps what’s motivating me: a sense of purpose and direction and edification.

At first I wanted to assign myself a book a week, but realizing that some works are longer or more challenging than others, that as a matter of obligation I will have other books to read and review, that I have a doctoral dissertation to write, that the legal profession is time consuming, and that unforeseen circumstances could arise, I decided that I might need more time than a week per book depending on the complexity of the particular selection or the busyness of the season.  Although I hope to stick to schedule, I own that I might have to permit myself flexibility.  We’ll see.

For variety—and respite—I have chosen to alternate between a pre-20th century text and a 20th century text.  In other words, one week I might read Milton, the next Heidegger.  For the pre-20th century texts, I will advance more or less chronologically; there is no method or sequence for the 20th century texts, which I listed as they came to mind (“oh, I’ve always wanted to read more Oakeshott—I should add him.  And isn’t my knowledge of Proust severely limited?—I’ll add him as well.”).  It’s too early to say what lasting and significant effects these latter texts will have, so I hesitate to number them among the demonstrably great pre-20th century texts, but a general consensus has, I think, established these 20th century texts as at least among the candidates for canonicity.

I have dated some of the texts in the list below.  Not all dates are known with certainty, by me or anyone else.  Some texts were revised multiple times after their initial publication; others were written in installments.  Therefore, I have noted the time span for those works produced over the course of many years.

One would be justified in wondering why I’ve selected these texts over others.  The answer, I suppose, pertains to something Harold Bloom once said: that there are many books but only one lifetime, so why not read the best and most enduring?  I paraphrase because I can’t remember precisely what he said or where he said it, but the point is clear enough: read the most important books before you run out of time.

Making this list, I learned that one can read only so many great works by picking them off one week at a time.  The initial disheartenment I felt at this realization quickly gave way to motivation: if I want to understand the human condition as the most talented and creative of our predecessors understood it, I will have to make a new list every year, and I will have to squeeze in time for additional texts whenever possible.  I am shocked at the number of books that I wanted to include in this list, but that didn’t make it in.  I ran out of weeks.  What a shame.

Here is my list.  I hope you enjoy. Read the rest of this entry »

Teaching Bioethics From a Legal Perspective

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

Allen Mendenhall

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

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

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

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

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

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

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

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