In preparation for an upcoming conference on Russian traditionalism, I thought it was a good moment to pick up Dotoyevsky's "The Brothers Karamazov." In a fairly early part of the book, I came across the following incredible exchange between Ivan Karamazov and the Orthodox monk "Elder," Father Zossima, concerning the separation of church and state and its effect on the justification of criminal punishment. It's as interesting and useful a reflection (particularly by the monk) on these issues as one can find anywhere:
"If everything became the Church, the Church would exclude all the criminal and the disobedient, and would not cut off their hands," Ivan went on. "I ask you, what would become of the excluded? He would be cut off then, not only from men, as now, but from Christ. By his crime he would have transgressed not only against men but against the Church of Christ. This is so even now, of course, strictly speaking, but it is not clearly enunciated, and very, very often the criminal of today compromises with his conscience: 'I steal,' he says, 'but I don't go against Church. I'm not an enemy of Christ.' That's what the criminal of today is continually saying to himself, but when the Church takes the place of the State it will be difficult for him, in opposition to the Church all over the world, to say: 'All men are mistaken, all in error, all mankind are the false Church. I, a thief and murderer, am the only true Christian Church.' It will be very difficult to say this to himself; it requires a rare combination of unusual circumstances. Now, on the other side, take the Church's own view of crime: is it not bound to renounce the present almost pagan attitude, and to change from a mechanical cutting off of its tainted member for the preservation of society, as at present, into completely and honestly adopting the idea of the regeneration of the man, and of his reformation and salvation?"
....
"Yes, but you know in reality it is so now," said the elder suddenly, and all turned to him at once. "If it were not for the Church of Christ there would be nothing to restrain the criminal from evil-doing, no real chastisement for it afterwards; none, that is, but the mechanical punishment spoken of just now, which in the majority of cases only embitters the heart; and not the real punishment, the only effectual one, the only deterrent and softening one, which lies in the recognition of sin by conscience....
"[A]ll these sentences to exile with hard labor, and formerly with flogging also, reform no one, and what's more deter hardly a single criminal, and the number of crimes does not diminish but is continually on the increase....Consequently the security of society is not preserved, for, although the obnoxious member is mechanically cut off and sent far away out of sight, another criminal always comes to take his place at once, and often two of them. If anything does preserve society, even in our time, and does regenerate and transform the criminal, it is only the law of Christ speaking in his conscience. It is only by recognizing his wrongdoing as a son of a Christian society--that is, of the Church--that he recognizes his sin against society--that is, against the Church. So that it is only against the Church, and not against the State, that the criminal of today can recognize that he has sinned. If society, as a Church, had jurisdiction then it would know whom to bring back from exclusion and to reunite to itself. Now the Church having no real jurisdiction, but only the power of moral condemnation, withdraws of her own accord from punishing the criminal actively. She does not excommunicate him but simply persists in fatherly exhortation of him. What is more, the Church even tries to preserve all Christian communion with the criminal. She admits him to church services, to the holy sacrament, gives him alms, and treats him more as a captive than as a convict. And what would become of the criminal, O Lord, if even the Christian society--that is, the Church--were to reject him even as the civil law rejects him and cuts him off? What would become of him if the Church punished him with her excommunication as the direct consequence of the secular law?
"There could be no more terrible despair, at least for a Russian criminal, for Russian criminals still have faith. Though, who knows, perhaps then a fearful thing would happen, perhaps the despairing heart of the criminal would lose its faith and then what would become of him? But the Church, like a tender, loving mother, holds aloof from active punishment herself, as the sinner is too severely punished already by the civil law, and there must be at least someone to have pity on him. The Church holds aloof, above all, because its judgment is the only one that contains the truth, and therefore cannot practically and morally be united to any other judgment even as a temporary compromise. She can enter into no compact about that. The foreign criminal, they say, rarely repents, for the very doctrines of today confirm him in the idea that his crime is not a crime, but only a reaction against an unjustly oppressive force. Society cuts him off completely by a force that triumphs over him mechanically and (so at least they say of themselves in Europe) accompanies this exclusion with hatred, forgetfulness, and the most profound indifference as to the ultimate fate of the erring brother. In this way, it all takes place without the compassionate intervention of the Church, for in many cases there are no churches there at all, for though ecclesiastics and splendid church buildings remain, the churches themselves have long ago striven to pass from Church into State and to disappear in it completely. So it seems at least in the Lutheran countries. As for Rome, it was proclaimed a State instead of a Church a thousand years ago. And so the criminal is no longer conscious of being a member of the Church, and sinks into despair. If he returns to society, often it is with such hatred that society itself instinctively cuts him off. You can judge for yourself how it must end....
"What was said here just now is true too, that is, that if the jurisdiction of the Church were introduced in practice in its full force, that is, if the whole of the society were changed into the Church, not only the judgment of the Church would have influence on the reformation of the criminal such as it never has now, but possibly also the crimes themselves would be incredibly diminished. And there can be no doubt that the Church would look upon the criminal and the crime of the future in many cases quite differently and would succeed in restoring the excluded, in restraining those who plan evil, and in regenerating the fallen. It is true," said Father Zossima, with a smile, "the Christian society now is not ready and is only resting on some seven righteous men, but as they are never lacking, it will continue still unshaken in expectation of its complete transformation from a society almost heathen in character into a single universal and all-powerful Church. So be it, so be it!"
Monday, February 27, 2017
Here's a fascinating story in the New York Times about a prosecution in Denmark for blasphemy, against a man who burned a Koran and posted his burning to Facebook. It seems that blasphemy laws remain on the Danish books, notwithstanding that the country is, by all accounts, very secular. Though the decision to charge was made at the local level, it has been ratified by Denmark's attorney general.
No one has been convicted under the Danish blasphemy laws since 1946, when the law was used to prosecute a man who dressed up as a priest and mock "baptized" a doll.
A few thoughts:
1. Apparently the defendant had been charged initially with a "hate speech" crime, but the charge was subsequently changed to blasphemy. Perhaps hate speech is a lesser included offense? The linear continuity of hate speech with blasphemy is itself worthy of a separate article. Indeed, as I have argued at length, but as Tocqueville said more pithily, freedom never governs without faith. The only real question for a society that enjoys some speech protections is for what ends speech will be restricted, not whether it will restrict it at all. Of course, it will. And it seems altogether natural that the proscription on hate speech would in the end find its fullest and most complete expression in the zealotry (I use the term neutrally) of an anti-blasphemy law. (Parenthetically, the man also stated that he hated children. That seems rather sweeping, and perhaps worthy of its own hate speech prosecution. Perhaps if he had said, "I hate some children," one might be more sympathetic.)
2. Denmark of course has a recent history of conflict with Islam, as in the infamous Mohammed cartoon incident about 10 years ago that resulted in no charges, and, as the story says, "deadly riots, attacks on Danish embassies in the Middle East and a trade boycott against Denmark." Perhaps, for these and other reasons, Denmark has come to a different conclusion today. Still, it's clear from the story that the burning of a Bible is legal, since in 1997 a Danish artist burned a copy of the Bible on television and nobody batted an eye. Perhaps what Denmark really needs is to refine its blasphemy laws--to give more detailed guidance about which religious texts may be defiled with impunity and which must be let alone. One thing that Denmark should not do: abandon blasphemy laws. It will only send such laws underground, and similar policies will be enforced through other means without the honesty of calling them what they are (vide, e.g., hate speech).
3. The defendant's lawyer seems to be making the utterly bizarre claim that the man acted in "self-defense" in burning the Koran, because the Koran contains language about how Mohammed's followers "must kill the infidel." I don't know the Danish law of self-defense, but this strikes me as a highly unusual principle of proportionality. But I suppose we need to know about the physical assaults committed by the Koran on this poor man in order properly to judge the self-defense claim.
4. Don't miss the wonderful comments of Professor Per Mouritsen, who with one side of his mouth tells us that "blasphemy law is a thing of the past" and with the other tells the Times that in Denmark, "the very idea that religion is taken seriously is the antithesis of being a good citizen." Perhaps Denmark should adopt laws authorizing the state-enforced (but nondiscriminatory, of course) burning of all holy books. It could be done on a state holiday. Call it "Conflagration Sunday."
Thursday, February 2, 2017
Michael has already quoted a passage from Judge Neil Gorsuch's chapter in the Finnis festschrift (Reason, Morality, and Law (Keown & George, eds. 2013)). Here's another one that caught my attention (419-20):
Not only does Finnis help us to see that the traditional intent-knowledge distinction in law bears analytical power overlooked by its critics. He also helps expose the undergirding normative reasons for the law's traditional cognizance of intention. He reminds us, for example, that some of the law's harshest punishments are often (and have long been) reserved for intentional wrongs precisely because to intend something is to endorse it as a matter of free will--and freely choosing something matters. Our intentional choices reflect and shape our character--who we are and who we wish to be--in a way that unintended or accidental consequences cannot. Our intentional choices define us. They last, remain as part of one's will, one's orientation toward the world. They differ qualitatively from consequences that happen accidentally, unintentionally....
This is a view, of course, that has long and deeply resonated through American and British jurisprudence, and indeed the Western tradition. It is precisely why the law treats the spring gun owner who maims or kills intentionally so differently from the negligent driver whose conduct yields the same result. As Roscoe Pound once put it, our "substantive criminal law is," at least at minimum, "based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong."
And then from Professor Finnis's reflection on Judge Gorsuch's chapter (564-65), which comments interestingly on the tendency of tort law to wipe out the distinction between intention and foreseeability:
The underlying point is that--put at its briefest--what is intended so figures in the acting person's proposal that it is adopted--chosen and made his or her own, as end and/or means--in the adopting of the proposal, whereas the side effects, however foreseeable and foreseen and perhaps very 'directly' caused, are not adopted, but only accepted or permitted.
Wednesday, February 1, 2017
The Lewis and Clark Law Review, with the guidance of Professor Jim Oleske, has put together a very nice symposium on Law and Religion in an Increasingly Polarized America. Very interesting papers by Kathleen Brady, Kent Greenawalt, Jessie Hill, Andy Koppelman, Ron Krotoszynski, Chip Lupu and Bob Tuttle, Jim Oleske, and Robin Wilson.
I've got a piece in there too, Religious Accommodation, Religious Tradition, and Political Polarization, which takes a somewhat critical look at the religious accommodation regime from, as it were, the other side.
Sunday, January 15, 2017
I am just back from a conference at Yale Law School organized jointly by Professors Robin Wilson and Bill Eskridge on "Faith, Sexuality, and the Meaning of Freedom," and I offer here some general thoughts about the presentations and the nature of the conference. While the conference's rules do not permit me to get into specifics about who said what, my overall impression is that it was a gathering of academics, politicians, religious leaders, and practitioners drawn from a comparatively broad spectrum of political, religious, and cultural opinion. Robin and Bill are to be commended, in my view, for that balance--always difficult to achieve to everyone's satisfaction.
One of the conference's launch points was the fairly recent report by the US Commission on Civil Rights entitled, "Peaceful Coexistence: Reconciling Nondiscrimination Principles With Civil Liberties," but which did not contain, in my view, very much sound advice for achieving peaceful coexistence or reconciliation. All of the panels concerned the topic of achieving modus vivendi arrangements for the proper legal accommodation of rights of religious liberty and rights of sexual freedom and equality. This has been a large and important part of Robin's own policy work over the last few years, and the so-called Utah Compromise was studied and considered in this respect.
Two things stood out for me in particular.
First, one of the more interesting debates among the group, and, it seems to me, going forward, is about the baseline question of what constitutes the sort of discrimination that the law ought to proscribe in the first place. Once a particular judgment is found to be proscribable discrimination (I suppose the term is "invidious"), the result is all but foreordained. Some argued that the motivation for a particular discrimination is irrelevant; so long as the effect is adverse action against a person within a designated protected category, that ought to be sufficient. Others returned that this was in effect stacking the deck. The first question must be whether somebody has engaged in invidious discrimination at all, and that this is not a question about motivation but about how we properly describe the discrimination that the person has made. Barronelle Stutzman's case is one example of this sort of debate, and this brief authored by Professor Steve Smith addresses the question. But the larger issue of the baseline affects many sorts of discriminations that people make in other contexts. Suppose, for example, that a hospital refuses to perform a surgery to remove the healthy uterus of a woman who identifies as transgender and desires to become a man. Is that the sort of discrimination on the basis of sexual orientation that the law should condemn? Or is it nothing of the kind--is it simply a judgment that hospitals do not remove healthy uteruses--and certainly nothing like a hospital's refusal to perform heart bypass surgery on a woman who identifies as transgender?
Second, one of the pervasive themes of the conference was the conflict between perfectionist and anti-perfectionist accounts of liberalism, and whether perfectionist liberalism is in its ascendancy at the moment. As is well-known, Robin, in her work with others like Professor Douglas Laycock and some of our own MOJ colleagues, has worked tirelessly to hammer out compromises that reflect a judicious anti-perfectionist liberalism. But my sense, in some ways confirmed by this conference, is that perfectionist accounts of liberalism (indeed, perfectionist accounts of politics in general) cannot really ever be sidelined. My own inclinations have always been rather pessimistic when it comes to true pluralism in a liberal democratic nation, even as I deeply appreciate the work of Robin and others. I believe strongly that the expressive and symbolic power of the law is an extremely important feature of it--what the law says about its people, what its people are proud of it to say, always lurks as a sort of subtext beneath the surface of whatever modus vivendi arrangements we might achieve. It is a mistake to ignore that subtext, as it will otherwise only come frothing and bubbling up at unexpected moments.
My own presentation involved what is seemingly a somewhat esoteric topic--Article XI of the Treaty of Tripoli--which begins with the statement that "[T]he government of the United States of America is not, in any sense, founded on the Christian Religion." Part of my talk involved the history of Article XI (which is fascinating) but part suggested that the fight over American identity that the phrase (and many phrases like it) has come to represent--and the symbolic and expressive force of the law--is both a substantial impediment to anti-perfectionist liberal democratic governance and an inevitable and important feature of any government worth the name. More on this soon, I hope.
Thursday, December 22, 2016
For one reason or another, a number of people in the blogosphere have been writing culture war posts in the last few days. Perhaps it's the end of the year, or the looming political changes, or exam avoidance, or just the holiday cheer. For those who are interested, have a look at Mark Tushnet's recent post, Paul Horwitz's response, and this rather grim comment by R.J. Snell--all of them culture war related.
But the piece I really want to highlight is alluded to in the Snell post--Philip Rieff's "The Newer Noises of War in the Second Culture Camp: Notes on Professor Burt's Legal Fictions," published in 1991 and in response to Robert Burt's then-recent book, "Two Jewish Justices: Outcasts in the Promised Land." I cannot do justice to the entire piece, but here is a fragment that is, in its way, responsive to each of the three posts above:
Let there be fight? And there was. And there is. James Joyce's pun, on the words of Jewish second world creation, Genesis 1:3, is more than mildly amusing; it gives readers the most exact and concise account I know of the sociological form of culture. Culture is the form of fighting before the firing actually begins. Every culture declares peace on its own inevitably political terms. Unless a culture is defeated politically, as the Jewish was from the Roman conquest to the founding of Israel, it will assert itself politically. A living culture, even one that imitates life by politicizing its cultural impoverishment, works for itself. That cultural work is the matter and manner of disarming competing cultures, inside and outside its previously bounded self. In its disarming manner, a culture makes the ultimate political means of enforcement, armed force, unnecessary....
12) Kulturkampf. The German compound word for the disarming force/form of culture has an awkward English equivalent: culture/struggle. As I remarked in the first note, the punning polemical genius of Joyce brought him closer than any sociologist I know to both the formal fighting sense of culture and its superordinate creative sense. It is in that both/and that the historical task of culture is always and everywhere the same: the creation of a world in which its inhabitants may find themselves at home and yet accommodate the stranger without yielding their habitus to him. Here and now, pluralism has its price: a united front of second against third world assaults [for Rieff's discussion of first, second, and third worlds, see earlier in the piece], which are often mounted in the name of pluralism.
13) Origins of kulturkampf. Law is the ultimate weapon, before any turn to harder ware, in a kulturkampf. That word first appeared in common German use in the early 1870's during the struggle of the National Liberal political party to disarm by law the moral/educational authority, and political pulpitry, of a triumphalist Roman Catholic hierarchy, revitalized as it then was by its dogma of papal infallibility in matters of faith and morals. The aim of the National Liberals was to shift the German Catholic imagination away from the church to the state. The Pope responded to newly restrictive laws by forbidding clerical conformity to them. In turn, the state dismissed clerical resisters from their duties and, moreover, suspended their state salaries. Elites of the kulturstaat, both Catholic and Protestant, then learned a fatally rational and enduring lesson: the high price of being other than indifferent to the temptation of opposing the machtstaat.
