It has been a couple of days since a jury decided on the death penalty for one of the two men who invaded the home of a Connecticut family, tortured and brutalized them, raped the mother and daughters, and slaughtered all but the father. I've been reflecting on why there hasn't been much commentary in the legal blogosphere about the incident, an exceptionally horrible one factually. My guess is that the lack of attention would be explained by the absence of any "legally" important question. But two responses occur to me. First, since when has that ever stopped people from commenting. Second, and much more important, I don't think it's remotely true that the incident does not raise important legal questions; apart from the death penalty issue (a perennial favorite of legal academics), there is the horrible brutality of the incident itself.
I can anticipate that the response to that last point might well be -- but there's nothing of real academic interest for criminal law scholars in reflecting on horrifying facts. And I think that's exactly right, but only as a descriptive account of the discomfort that legal academics feel when confronting what I want to call "the core" of the criminal law.
By "the core," I should first make clear what I don't mean. I don't mean that all criminal acts partake of the core, or that to be "criminal" is to be within the core (that is, I don't mean something like a Rawlsian range property). Clearly there are many criminally proscribed acts which do not share the attributes of the core. I also don't mean that there is anything focal or of the essence of the core -- something that makes the core more essentially "criminal" than other acts which are not at the core but are also criminal. (I take this to be something like John Finnis's description of focal cases of law in NLNR).
Instead, the core of the criminal law is merely a feature of certain kinds of criminality, a trait, sometimes present, sometimes not, but rarely (if ever) existing in other legal contexts. The core of the criminal law concerns acts which powerfully elicit visceral fear and hatred because of their transgressiveness -- their violation of the most deep-rooted interdictions. What makes these acts "core" is that they are legally unique insofar as they dredge up these sentiments. Law students will not encounter them in civil procedure, or contracts, or property, or even torts (though perhaps certain kinds of intentional tort come close). The core elicits an overpowering sense of foreboding, of terror, and even of rage at what must not be done.
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“To see Christ as God and man is probably no more difficult today than it has always been, even if today there seem to be more reasons to doubt. For you it is a matter of not being able to accept what you call a suspension of the laws of the flesh and the physical, but for my part I think that when I know what the laws of the flesh and the physical really are, then I will know what God is. We know them as we see them, not as God sees them. For me it is the virgin birth, the Incarnation, the resurrection which are the true laws of the flesh and the physical. Death, decay, destruction are the suspension of these laws. I am always astonished at the emphasis the Church puts on the body. It is not the soul she says that will rise but the body, glorified…. The resurrection of Christ seems the high point of the law of nature.”
(Sept 6, 1955)
Wednesday, November 10, 2010
Having someone run for office in order to get a graphic anti-abortion ad on the air has sparked some controversy. (My own view is that, provided that the ads are run at times when children are not likely to be watching, they are a legitimate contribution to the public conversation.)
You may have heard that an Oklahoma court enjoined the newly enacted state ban on the use of Sharia (and international law) in court. The opinion is now available. Here are the plaintiff's claims
[P]laintiff asserts that the moment Oklahoma’s constitution is amended, his First Amendment rights will be violated: (1) by Oklahoma’s official condemnation of his religion/faith as reflected through the amendment to Oklahoma’s constitution banning state courts’ use or consideration of Sharia Law, (2) by the invalidation of his last will and testament which incorporates various teachings of Mohammed, and (3) by the excessive entanglement of the state courts with religion that would result from the amendment as the state courts in implementing the amendment would have to determine what is and is not encompassed in Sharia Law.
I'm not entirely persuaded that a ban on Sharia law violates the First Amendment, but I do think that a categorical ban is unnecessary and unhelpful, especially if we care about the sort of robust pluralism spoken of by folks such as the Archbishop of Canterbury, who explored the question of "living under more than one jurisdiction." My concern is foreclosing the possibility that Sharia law can shape the private ordering of Muslim citizens; I of course would oppose using Sharia law to define the public order. If the law lacks the space to recognize that some of our commitments are not easily translated into a unitary legal regime, I think that Christians have cause to worry as well.
Tuesday, November 9, 2010
A new study finds that while giving to churches is down (measured as average annual giving per member), giving to religious charities is up (measured as size of average annual donation). This is intriguing, and I wonder if part of this development is due to increasing global awareness among American Christians. I could be totally wrong on this, but my sense is that Christians, thanks in part to the efforts of folks like Rick Warren, Ron Sider, and yes, even Bono, have become less content to focus on new cushions for the choir loft, and more interested in helping secure clean water in Sudan. (I have no statistics to back this up, though, so please point me in the right direction if such statistics do exist.) Another intriguing statistic: 92% of charitable giving by those under age 25 is to churches or religious charities.
An interesting essay, from The Hedgehog Review, by Charles Taylor:
It is generally agreed that modern democracies have to be “secular.” There is perhaps a problem, a certain ethnocentricity, involved in this term. But even in the Western context the term is not limpid and may in fact be misleading. What in fact does it mean? There are at least two models of what constitutes a secular regime. Both involve some kind of separation of church and state. The state can’t be officially linked to some religious confession, except in a vestigial and largely symbolic sense, as in England or Scandinavia. But secularism requires more than this. The pluralism of society requires that there be some kind of neutrality, or “principled distance,” to use Rajeev Bhargava’s term.
If we examine it further, secularism involves in fact a complex requirement. There is more than one good sought here. We can single out three, which we can classify in the categories of the French Revolution trinity: liberty, equality, fraternity. First, no one must be forced in the domain of religion, or basic belief. This is what is often defined as religious liberty, including of course, the freedom not to believe. This is what is also described as the “free exercise” of religion, in the terms of the U.S. First Amendment. Second, there must be equality between people of different faiths or basic beliefs; no religious outlook or (religious or areligious) Weltanschauung can enjoy a privileged status, let alone be adopted as the official view of the state. Third, all spiritual families must be heard, included in the ongoing process of determining what the society is about (its political identity) and how it is going to realize these goals (the exact regime of rights and privileges). This (stretching the point a little) is what corresponds to “fraternity.” . . .
Read the whole thing . . .
