Courtesy of our friends at BYU’s International Center for Law and Religion Studies, I’m happy to announce the seventh annual Religious Liberty Student Writing Competition, co-sponsored by the J. Reuben Clark Law Society. Details below (n.b.: prizes seem to be on the heftier side this year!).
Religious Liberty Student Writing Competition
DEADLINE: JULY 1, 2016
Purpose
To promote legal and academic studies in the field of religious liberty by law students and students pursuing related graduate studies. Students who have graduated from law school but who are not yet practicing law due to clerkships or other similar pursuits are also invited to submit papers.
Form
Scholarly paper relating to the topic of domestic or international religious liberty, broadly or narrowly construed, consisting of 9,000-13,000 words, including footnotes. Eligible papers must be typed, thoroughly cited and presented in a format suitable for publication, with no additional editing required. Papers must conform to Bluebook requirements and may include footnotes. Papers prepared for academic coursework are permitted.
Submission
All papers must be submitted on or before July 1, 2016. Papers should be submitted by e-mail to papers@ jrclsdc.org in pdf and/or docx formats. A current resume should also be included. You will receive e-mail confirmation of your submission. Questions regarding submission may be directed to [email protected].
Awards
Top entries will receive the following awards:
FIRST PLACE $4000 cash award
SECOND PLACE $3000 cash award
THIRD PLACE $2000 cash award
HONORABLE MENTION Four $1000 cash awards
Selection
All papers will be reviewed for their conformity to the above requirements and for their substantive treatment of the topic. Awards will be presented at the Religious Liberty Award Dinner in Washington, DC on Thursday, October 6, 2016.
I have not taught Professional Responsibility in a few years, but when I did, one unit concerned the allocation of authority as between a client and a lawyer. The rule is 1.2, which states in relevant part: "a lawyer shall abide by a client's decisions concerning the objectives of representation and...shall consult with the client as to the means by which they are to be pursued..." In my experience, discussion of this provision tends to focus on a few, fairly dull, contemporary oddities without a great deal of depth in them--the Unabomber case, or scattershot debates between Supreme Court justices about the ends of litigation, and so on.
But there is a wonderful illustration of the conflict that the rule perhaps means, in its typically arid and exsanguinous way, to address, in Dickens's "Bleak House." Here is the scene: an upright and honorable, though down-on-his-luck, military man, Mr. George, has been wrongfully accused of the murder of a prominent and rather nasty lawyer, Mr. Tulkinghorn, who represented one of George's creditors. George is being held in custody and his friends, who include the novel's main protagonists, come to visit and express sympathy. And to advise that he get a lawyer for his defense. But here is George's reaction (in Chapter LII, titled "Obstinacy," in discussion with Mr. Jarndyce, who is referred to by the narrator, Esther Summerson, as "my guardian"):
"You must have a lawyer," pursued my guardian. "We must engage a good one for you."
"I ask your pardon, sir," said Mr. George, with a step backward. "I am equally obliged. But I must decidedly beg to be excused from anything of that sort."
"You won't have a lawyer?"
"No, sir." Mr. George shook his head in the most emphatic manner. "I thank you all the same, sir, but--no lawyer!"
"Why not?"
"I don't take kindly to the breed," said Mr. George. "Gridley didn't. And--if you'll excuse my saying so much--I should hardly have thought you did yourself, sir."
"That's Equity," my guardian explained, a little at a loss; "that's Equity, George."
"Is it, indeed, sir?" returned the trooper, in his off-hand manner. "I am not acquainted with those shades of names, myself, but in a general way I objected to the breed."
Unfolding his arms and changing his position, he stood with one massive hand upon the table, and the other on his hip, as complete a picture of a man who was not to be moved from a fixed purpose as I ever saw. It was in vain that we all three talked to him, and endeavoured to persuade him; he listened with that gentleness which went so well with his bluff bearing, but was evidently no more shaken by our representations than his place of confinement was.
"Pray think, once more, Mr. George," said I. "Have you no wish, in reference to your case?"
"I certainly could wish it to be tried, miss," he returned, "by court-martial; but that is out of the question, as I am well-aware. If you will be so good as to favour me with your attention for a couple of minutes, miss, not more, I'll endeavour to explain myself as clearly as I can."
He looked at us all three in turn, shook his head a little as if he were adjusting it in the stock and collar of a tight uniform, and after a moment's reflection went on.
"You see, miss, I have been handcuffed and taken into custody, and brought here. I am a marked and disgraced man, and here I am....I don't particularly complain of that. Though I am in these present quarters through no immediately preceding fault of mine, I can very well understand that if I hadn't gone into the vagabond way in my youth, this wouldn't have happened. It has happened. Then comes the question, how to meet it."
He rubbed his swarthy forehead for a moment, with a good-humoured look, and said apologetically, "I am such a short-winded talker that I must think a bit." Having thought a bit, he looked up again, and resumed.
"How to meet it. Now, the unfortunate deceased was himself a lawyer, and had a pretty tight hold of me. I don't wish to rake up his ashes, but he had, what I should call if he was living, a Devil of a tight hold of me. I don't like his trade the better for that. If I had kept clear of his trade, I should have kept outside this place. But that's not what I mean. Now, suppose I had killed him....What should I have done as soon as I was hard and fast here? Got a lawyer."....
"I should have got a lawyer, and he would have said (as I have often read in the newspapers), 'my client says nothing, my client reserves his defence--my client this, that, and t'other.' Well, 'tis not the custom of that breed to go straight, according to my opinion, or to think that other men do. Say, I am innocent, and I get a lawyer. He would be as likely to believe me guilty as not; perhaps more. What would he do, whether or not? Act as if I was;--shut my mouth up, tell me not to commit myself, keep circumstances back, chop the evidence small, quibble, and get me off perhaps! But, Ms. Summerson, do I care for getting off in that way; or would I rather be hanged in my own way--if you'll excuse my mentioning anything so disagreeable to a lady?"
He had warmed into his subject now, and was under no further necessity to wait a bit.
"I would rather be hanged in my own way. And I mean to be! I don't intend to say," looking round upon us, with his powerful arms akimbo and his dark eyebrows raised, "that I am more partial to being hanged than any other man. What I say is, I must come off clear and full or not at all. Therefore, when I hear stated against me what is true, I say it's true; and when they tell me, 'whatever you say will be used,' I tell them I don't mind that; I mean it to be used. If they can't make me innocent out of the whole truth, they are not likely to do it out of anything less, or anything else. And if they are, it's worth nothing to me."
The project seeks to develop a broad understanding of what tradition might continue to offer for law, politics, and responsible citizenship. It will explore the value of tradition and the relationship between tradition and change in today’s world.
For its first event in Fall 2016, the project will bring together leading public figures, scholars, judges, and journalists for a lecture and workshops addressing the multiple meanings of tradition and the importance of tradition for American law, politics, and citizenship.
Through the project, the Center for Law and Religion aims to develop a broad and rich understanding of what tradition might continue to offer in cultivating virtuous, responsible, self-governing citizens.
For more information on the Tradition Project and the Center for Law and Religion, please contact the project's co-leaders, my colleague Mark Movsesian and me.
I'm reading "Bleak House" now for the first time, one of those books that one is supposed to read but whose intimidating size has dissuaded me in the past. By reputation, it's also a book that figures ubiquitously in the 'law and literature' canon (though I cannot imagine that most courses require students to read the whole thing, which is a pity). And, indeed, I can see why from the vantage point of a certain sort of legal academic. The portrait of the law that emerges in the book is not flattering, and there is a good deal of rather generously larded reformist sanctimony in it.
And yet there are parts of "Bleak House" that complicate the nature of Dickens's critique of law in interesting and even brilliant ways. It is notable, for example, that the site of all the foggy, sickly malaise hanging over English society in the book is generated not by a court of law, but a court of equity. It is the endless legal proceeding ostensibly concerning contesting wills in Chancery, and all of its intricate workings and doings and plots to keep the affair going for as long as possible, that is the principal villain of the story. Law as the embodiment and dispensation of human fairness is law in its most detestable state.
"Bleak House" also illustrates the special sort of deformity of mind that is caused particularly by law. One can see this in the tragedy of Richard Carstone, one of the wards of the benevolent John Jarndyce whose interests are implicated in the law suit. Richard begins as a callow and rather inconstant spirit, but still someone of noble instincts. As the book proceeds, his obsession with the law suit and the vindication of his rights under it transforms him. The law suit becomes the only thing he can be constant about. And the legal frame of mind, with its insistence on rationality and rights, is depicted as a kind of psychological crookedness, albeit one that cures, in its way, Richard's own personal flaws.
My edition of "Bleak House" is followed in an appendix by an essay of Chesterton in which he offers this:
Let anyone who thinks that Dickens could not describe the semitones and the abrupt instincts of ordinary human nature simply take the trouble to read the stretch of chapters which detail the way in which Carstone's mind grew gradually morbid about his chances in Chancery. Let him note the manner in which the mere masculinity of Carstone is caught; how as he grows more mad he grows more logical, nay, more rational. Good women who love him come to him, and point out the fact that Jarndyce is a good man, a fact to them solid like an object of the senses. In answer he asks them to understand his position. He does not say this; he does not say that. He only urges that Jarndyce may have become cynical in the affair in the same sense that he himself may have become cynical in the affair. He is always a man; that is to say, he is always unanswerable, always wrong. The passionate certainty of the woman beats itself like battering waves against the thin smooth wall of his insane consistency....
The clumsy journalist would have made Rick Carstone turn on John Jarndyce with an explosion of hatred, as of one who had made an exposure....The great artist knew better; he knew that a good man going wrong tries to salve his soul with the sense of generosity and intellectual justice. He will try to love his enemy if only out of mere love of himself. As the wolf dies fighting, the good man gone wrong dies arguing.
The modern First Amendment embodies the idea of freedom as a fundamental good of contemporary American society. The First Amendment protects and promotes everybody’s freedom of thought, belief, speech, and religious exercise as basic goods — as given ends of American political and moral life. It does not protect these freedoms for the sake of promoting any particular vision of the virtuous society. It is neutral on that score, setting limits only in those rare cases when the exercise of a First Amendment freedom exacts an intolerable social cost.
Something like this collection of views constitutes the conventional account of the First Amendment. This essay offers it two challenges. First, the development of the First Amendment over the past century suggests that freedom is not an American sociopolitical end. It is a means — a gateway out of one kind of political and legal culture and into another with its own distinctive virtues and vices. Freedom is not a social solution but instead gives rise to a social problem — the problem of how to allocate a resource in civically responsible ways, so as to limit freedom’s hurtful potential and to make citizens worthy of the freedoms they are granted. Only a somewhat virtuous society can sustain a regime of political liberty without collapsing, as a society, altogether. Thus the First Amendment of the conventional account has not maximized freedom for all people and groups. It has promoted a distinctive set of views about the virtuous legal and political society.
Second, the new legal culture promoted and entrenched by the conventional account is increasingly finding that account uncongenial. In fact, the conventional account is positively harmful to its continued flourishing. That is because the new legal culture’s core values are not the First Amendment freedoms themselves but the particular conceptions of political and social equality and individual dignity that the conventional account has facilitated and promoted. Proponents of the new legal culture in consequence now argue for aggressive limits on First Amendment freedoms.
One prominent group has invented a new legal category: “enumerated rights Lochnerism.” These scholars denigrate any First Amendment resistance to multiplying forms of expansive government regulation in the service of egalitarian aims as retrogressively libertarian. Another group argues for novel limits on the First Amendment in the form of balancing tests that would restrict speech that injures the dignity of listeners and religious exercise that results in vaguely defined and vaguely delimited harms to third parties. What unites these critics is the desire to swell features of the Court’s post-New Deal Fourteenth Amendment jurisprudence, and particularly the law concerning sex as a civil right, by protecting progressively expansive conceptions of equality and individual dignity. The critics see the conventional account of the First Amendment as an obstacle in the path of progress.
Part I of this essay presents the conventional account of the First Amendment in three theses. It then critiques the conventional account in Part II by offering three revised theses, developed through the somewhat unusual route of exploring the First Amendment thought of the late political theorist and constitutional scholar, Walter Berns. Freedom, for Berns, gave rise to a problem — the problem of making men sufficiently virtuous to merit their freedom. It was a problem that he thought had been ignored or even forgotten by defenders of the conventional account of the First Amendment.
But the problem of virtue and freedom has been remembered. Part III argues that contemporary defenders of the new legal culture have remembered the problem just as their own cultural and legal mores are ascendant. The new civic virtues — exemplified in multiplying anti-discrimination regulations for the protection of thickening conceptions of equality and individual dignity, particularly as those concepts relate to sexual autonomy — are those that were fostered by the conventional account of the First Amendment in tandem with significant components of the Supreme Court’s post-New Deal Fourteenth Amendment jurisprudence. And those civic virtues are already informing new criticisms of the conventional account and arguments about new limitations on the scope of religious freedom and freedom of speech. Berns’s arguments about freedom and virtue, it turns out, are highly relevant today since progressive opinion is no longer committed to First Amendment “absolutism.”
The essay concludes with two speculations. First, it seems we are no longer arguing about whether to restrict freedom, but for what ends. If that is true, then those arguments should neither begin nor end with egalitarian and sexual libertarian fervor. Second, there is no account of the First Amendment that maximizes freedom for everyone — for all persons and groups. There is only the society that America was before the rise of the conventional account of the First Amendment and the society that it is becoming after it.
Here's perhaps something of a light distraction from various present horrors. I have written about Anthony Trollope here before, one of the greatest and most unjustly neglected (at least in the United States) novelists of the Victorian period. But particularly for those interested in law and religion, may I recommend "The Warden"--the first of Trollope's Barsetshire Novels--as one of the greatest little novels I've read in years. A few notes on the plot:
The story concerns a will by one John Hiram, who establishes in the 15th century a "hospital" (really a kind of sanatorium) for the care of several bedesmen (needy pensioners). An Anglican churchman--the warden--is given the care of this hospital, with an attendant salary. But over the years, as the property increases in value, so does the warden's income, which by the time of the story sits at a very comfortable 800 pounds. The warden at the time of the telling, Septimus Harding, is a kind, gentle, caring, and honorable man who takes exceptional care of his charges. Nevertheless, a question arises about Mr. Harding's entitlement under the will to so generous an income. A reform-minded young man named John Bold (who also happens to be the suitor of Mr. Harding's daughter) begins to make inquiries--with the utmost good faith--about the nature of the original bequest. And this unleashes a bitter contest between the local archdeacon and the reformers (as well as other unscrupulous and nasty types) about the propriety of the income of the wardenship at Hiram's Hospital.
Part of what makes the novel so good is the delicacy with which the characters are drawn. Unlike in Dickens, where the characters are perhaps a bit too often either the purest angels or the rankest devils, Trollope's novel is populated with characters who have doubts about what is right. Mr. Harding himself is a deeply good man, but also one with sincere and real qualms about the justice of the matter. As Trollope puts it, Mr. Harding was far less concerned to be proved right at law than to be right.
Though their lives are entirely comfortable, many of the bedesmen are lured into joining a law suit when the promise of 100 pounds a year is dangled in front of them by an exploitative lawyer who strikes the appealing notes of self-righteousness in combination with legal entitlement. In the end, after his name is repeatedly dragged through the mud by the local press, the warden resigns and the bedesmen don't see a cent. In a touching scene at the end of the novel, as the warden is leaving the hospital, he says goodbye to a bedridden bedesman who is destined to die within the week, "poor old Bell":
"I've come to say goodbye to you, Bell," said Mr. Harding, speaking loud, for the old man was deaf.
"Are you going away, then, really?" asked Bell.
"Indeed I am. And I've brought you a glass of wine; so that we may part friends, as we lived, you know."
The old man took the proffered glass in his shaking hands, and drank it eagerly, "God bless you, Bell!" said Mr. Harding; "good bye, my old friend."
"And so you're really going?" the man again asked.
"Indeed I am, Bell."
The poor old bed-ridden creature still kept Mr. Harding's hand in his own, and the warden thought he had met with something like warmth of feeling in the one of all his subjects from whom it was the least likely to be expected; for poor old Bell had nearly outlived all human feelings. "And your reverence," said he, and then he paused, while his old palsied head shook horribly, and his shriveled cheeks sank lower within his jaws, and his glazy eye gleamed with a momentary light; "and your reverence, shall we get the hundred a year, then?"
How gently did Mr. Harding try to extinguish the false hope of money which had been so wretchedly raised to disturb the quiet of the dying man! One other week and his mortal coil would be shuffled off; in one short week would God resume his soul, and set it apart for its irrevocable doom; seven more tedious days and nights of senseless inactivity, and all would be over for poor Bell in this world; and yet, with his last audible words, he was demanding his moneyed rights, and asserting himself to be the proper heir of John Hiram's bounty! Not on him, poor sinner as he was, be the load of such sin!
There is so much more in this superlative story of law, rights, religion, justice, reform, tradition, personal frailty, and the complicated nature of human motivations and character. One of the very best.
MOJ friend John Inazu has an interesting column at The Hedgehog Review concerning his new book, Confident Pluralism: Surviving and Thriving Through Deep Difference. I had not known the denouement of the Flynt/Falwell affair. I am very glad that there are people like John about, pressing these kinds of positions so eloquently, though sometimes, perhaps in my more Rousseauian moods, I just don’t think “Plures Ex Uno” (or perhaps just “Plures” in disaggregation, haphazardly occupying the same geographic spaces, to say nothing of "Plures Ex Nihilo") has quite the same civic appeal as “E Pluribus Unum.” I’ll have something longer on this shortly. For now, though, enjoy John’s column. A bit:
“It is impossible,” said the French philosopher Jean-Jacques Rousseau, “to live at peace with those we regard as damned.” Falwell and Flynt certainly seemed to fulfill Rousseau’s dire prediction. Many of the rest of us do, too. From hostility to civil-rights protests in Missouri, to anti-Muslim protests in Oklahoma, to culture wars boycotts, we struggle to live with those whose views we regard as irrational, immoral, or even dangerous….
Even as some of us struggle to coexist, others feign agreement by ignoring or minimizing our stark differences. We hold conferences, attend rallies, and sign statements expressing unity and solidarity. But most of us do not actually think that our differences are so easily overcome. And most of us do not actually want to see a thousand flowers bloom. We can all name things we think the world would be better off without. This is especially true when it comes to questions of morality and ultimate conviction. We might prefer a society in which everyone agreed on what counted as a justifiable homicide, a mean temperament, or a good life, but that is not the kind of society in which we actually live.
There is another possibility that better embraces the reality of our deepest differences: confident pluralism. Confident pluralism insists that Rousseau was wrong: Our shared existence is not only possible, but necessary. Instead of the elusive goal of E pluribus unum (“Out of many, one”), confident pluralism suggests a more modest possibility—that we can live together in our “many-ness.” It does not require Pollyanna-ish illusions that we will resolve our differences and live happily ever after. Instead, it asks us to pursue a common existence in spite of our deeply held differences.
I want to call a bit of notice to Professor Samuel Moyn's very interesting and elegantly executed new book, Christian Human Rights (2015), which traces the specifically 20th century Christian roots of contemporary (secular?) human rights. Moyn begins really in 1937 and devotes special attention to Pope Pius XII's 1942 Christmas message, "The Internal Order of States and People," in which Pius announced both the "dignity of the human person" and that man "should uphold respect for and the practical realization of...fundamental personal rights."
I've just started to dig in to the book, but I wanted to highlight a few passages from the introduction to illustrate some of the accents and grace notes of the book. There is, for example, this line: "The trouble, after all, is not so much that Christianity accounts for nothing, as that it accounts for everything." (6) Part of Moyn's project is remedial with respect both to those "secular historians" who have "nervously bypassed" "the Christian incarnation of human rights, which interferes with their preferred understandings of today's highest principles" and those other scholars, "overwhelmingly Christians themselves," who go about defending the Christian tradition of human rights "in a highly abstract way" and by recourse to "long ago events" stretching back to the very beginnings of Christianity.
There is also this, on the idea of tradition (admittedly, a subject of some interest to me):
No one could plausibly claim--and no one ever has--that the history of human rights is one of wholly discontinuous novelty....But radical departures nonetheless occurred very late in Christian history, even if they were unfailingly represented as consistent with what came before: this is how "the invention of tradition" most frequently works. (5)
The citation is to Hobsbawm's essay (in his edited volume of essays) on The Invention of Tradition (in which Hugh Trevor Roper's typically and enjoyably acid essay on Scottish tartans is one of my very favorites in the 'tradition-as-fraud' genre). Yet I hope it is not too tart of me to wonder whether this phenomenon might just as easily be called "the invention of novelty," novelties being, of course, the stuff on which scholars make their living. Perhaps a little of both?
More seriously, perhaps what these lines in Moyn's insightful book really suggest is that what is really needed is a true and clear-eyed account of the idea of tradition and its importance for law and legal institutions generally, one that is committed neither to lionization nor demonization.
My friend, Jim Stewart, is, for my money, one of the most interesting new scholars of complicity writing today. Jim is an international criminal law scholar by and large, and one particular area of his expertise is in the law and policy of "corporate pillage" in the international community, and in Africa in particular.
Still, in this very short transcription of his remarks at the American Society of International Law's Annual Conference on the subject of "complicity in business and human rights," I was struck by the possible range of application of this quote, even quite far afield from Jim's own special area of study:
Complicity goes to the heart of our attempts to live decently in a world that is characterized by, first, great interconnectedness born of globalization, and second, enormous dysfunction. Complicity is especially important as a legal and ethical concept that delineates how we as individuals, businesses, and states should comport ourselves to lead decent lives in this very imperfect interconnected world. And because our points of connection are likely to intensify with the technological advance that drives globalization, complicity is likely to take on a new importance for international law moving forward....
I believe that just having these sorts of discussions about complicity is a net gain for the world. In her book On Violence, Hannah Arendt points out that the absence of a robust pacifist discourse in the world bodes ill for the ways in which we are likely to use force. By the same token, the absence of a robust discourse about complicity undermines our chances of living decent lives in the world as presently constituted. For that reason, discussions about complicity are to be welcomed, even and perhaps especially, where they involve differences of opinion, deep skepticism, and outright critique.
Professor Robert Delahunty is blogging for the next period over at CLR Forum. He'll be exploring, inter alia, the themes in Euripedes' play, "The Suppliants," and what the work tells us about an alternative canon of thought concerning just war theory, humanitarian intervention, and the burial and other treatment of the war dead. Here is a fragment of his first post:
Part of the explanation for the dominance of just war theory is the pedigree that scholars have assigned to it. In most standard accounts, such as Alex Bellamy’s excellent Just Wars: From Cicero to Iraq (2008), the tradition of just war thinking begins with the Roman politician, orator and thinker Cicero, is Christianized by St. Augustine, is then reconfigured by St. Thomas Aquinas, and afterwards is handed down through the early modern Spanish scholastics and their secular successors, including Hugo Grotius and Emer de Vattel to the modern period. In this narrative, the tradition waned in the “positivist” period of international law in the nineteenth century, but was revived in the aftermath of the First World War....
[But] [t]here is another important, but largely neglected, stream of Western thought about just war that flows outside the current canon. I would hesitate to say that these other writings constituted a “tradition,” but they certainly equal the current just war canon in terms of antiquity, depth, and the distinction of their authors. This body of thought and reflection is found primarily in works of literature and history, rather than in theology, philosophy, jurisprudence, or statecraft. In this counter-canon (to call it that), the Roman historian Sallust would loom as large as Cicero does in the current canon, and Shakespeare would be as important as Aquinas or Grotius. In this series of postings, I will argue that the Athenian tragic poet Euripides, writing in the late fifth century BC, deserves inclusion in any canon of great Western writers on the subject of justice in war.
I am not, of course, arguing that one can find the term “just war,” or any near equivalent, in the writers of drama and history whom I have in mind. (For that matter, it is not so easy to find occurrences of the term in any ancient writers, including Cicero.) What I am saying is that the concept of a just war can be identified there, and that the application of that concept is studied in ways that can be of profound interest. To be sure, dramatists and historians pursue their studies in ways that are necessarily different from those of philosophers or lawyers, whose function it is to frame general rules. The former are essentially concerned with individual situations, and their presentation of the issues is concrete and unsystematized. To use Wittgenstein’s distinction, they show rather than say. But the very complications that are added by fixing on the unique and unrepeatable can deepen and enrich our reflections on the morality of war.
