My selection this week from The City of God comes from Book I, Chapter 9, just after Augustine has been
discussing the objection from his pagan adversaries that it does not seem right that Christian divine compassion is extended both to the wicked and the good; likewise, why should the wicked and the good suffer the same evils in the earthly city? What kind of God would inflict the same hurts on the good and the wicked alike?
Augustine first says that what matters is not the event of suffering itself, but the person undergoing the suffering: "though good and bad men suffer alike, we must not suppose that there is no difference between the men themselves, because there is no difference in what they both suffer. For even in the likeness of the sufferings, there remains an unlikeness in the sufferers." I.8.
Fair enough, one might respond, but if the sufferers are not alike, why should they undergo similar pain? This seems unjust. Augustine argues that it is right that God's "corrections" be administered in the earthly city to good and bad men alike because these corrections are reminders to good men that "although they be far from the excesses of wicked, immoral, and ungodly men, yet they do not judge themselves so clean removed from all faults as to be too good to suffer in these temporal ills." I.9.
What are the particular failings of good people that Augustine emphasizes in this chapter--those sins that warrant their suffering in this world, indeed, that warrant their suffering similar pain to the wicked? Here is Augustine's answer:
For often we wickedly blind ourselves to the occasions of teaching and admonishing them [the wicked], sometimes even of reprimanding and chiding them, either because we shrink from the labor or are afraid to offend them, or because we fear to lose good friendships, lest this should stand in the way of our advancement, or injure us in some worldly matter, which either our covetous disposition desires to obtain, or our weakness shrinks from losing. So that although the conduct of wicked men is distasteful to the good, and therefore they do not fall with them into that damnation which in the next life awaits such persons, yet, because they spare their damnable sins through fear, therefore, even though their own sins be slight and venial, they are justly scourged with the wicked in this world, though in eternity they quite escape punishment. Justly, when God afflicts them in common with the wicked, do they find this life bitter, through love of whose sweetness they declined to be bitter to these sinners.
If anyone forbears to reprove and find fault with those who are doing wrong, because he seeks a more seasonable opportunity, or because he fears they may be made worse by his rebuke, or that other weak persons may be disheartened from endeavoring to lead a good and pious life, and may be driven from the faith--this man's omission seems to be occasioned not by covetousness, but by a charitable consideration. But what is blameworthy is, that they who themselves revolt from the conduct of the wicked, and live in quite another fashion, yet spare those faults in other men which they ought to reprehend and wean them from; and spare them because they fear to give offense, lest they should injure their interests in those things which good men may innocently and legitimately use....They abstain from interference, because they fear that, if it fail of good effect, their own safety or reputation may be damaged or destroyed; not because they see that their preservation and good name are needful, that they may be able to influence those who need their instruction, but rather because they weakly relish the flattery and respect of men, and fear the judgments of the people, and the pain or death of the body; that is to say, their nonintervention is the result of selfishness, not love.
Accordingly, this seems to me to be one principal reason why the good are chastised along with the wicked, when God is pleased to visit with temporal punishments the profligate manners of a community. They are punished together, not because they have spent an equally corrupt life, but because the good as well as the wicked, though not equally with them, love this present life; while they ought to hold it cheap, that the wicked, being admonished and reformed by their example, might lay hold of life eternal. And if they will not be the companions of the good in seeking life everlasting, they should be loved as enemies, and dealt with patiently. For so long as they live, it remains uncertain whether they may not come to a better mind.
There are many interesting and difficult observations in this passage. First, the obligation of the good to admonish the wicked is laid out plainly. 'Follow your own star and the world will be a better place' is not the ethical, or, for that matter, the political, message here. Indeed, the failure to meet this obligation is one of the "principal" reasons that both good and wicked are afflicted with suffering in the earthly city.
Second, note the psychology of admonition and failure to admonish that Augustine proposes. One's motivations for failing to take a stand in opposition to wrongful conduct make a difference. The failure to rebuke is culpable when the motivation for that failure is self-interested. But failure to rebuke is not culpable if it is motivated by love of the object of the admonition. So that the failure to take a stand in response to wrongful conduct would not be culpable if it were motivated by non-egoistic prudential considerations--the efficaciousness of the rebuke, for example, or its tendency to dissuade others from leading a good life.
Third, one of these prudential considerations might be the preservation of one's own good name or reputation, provided that the motivation for such a preservation were to keep in play the possibility of altering wrongful conduct in the future. Such a preservation would not be included as a prudential consideration if the motivation for it were the weak desire for the "respect of men, and fear [of] the judgments of the people." Even the fear of "pain or death of the body" would not be an adequate reason to refrain from rebuke. This is demanding indeed. Professor Robert Dodaro, in his excellent volume, Christ and the Just Society in the Thought of Augustine, has this to say about the last point: "Because [Augustine] believes that happiness is predicated upon the knowledge and love of God as the supreme good, he concludes that fear of death epitomizes the fundamental threat to the formation of a just society. Justice is not found wherever fear of death impedes action aimed at the attainment of lasting happiness. Virtue is therefore necessary to overcome fear of death, all the more so because it leads human beings to choose permanent over temporal goods." Id. at 35-36.
Fourth, and finally, admonition--even when it is necessary--is always to be "gentle and patient." Presumably this is not only for reasons of prudence or efficacy, but also because one can never know--that is, "it remains uncertain" to the rebuker--what people's fate will be and what end they will come to. As R.A. Markus puts it: "[T]he Augustinian vision springs from a sense of conflicting purposes, of uncertainties of direction and of tensions unresolvable in society. In place of the Aristotelian confidence in the established order, the Augustinian tradition is inspired rather by a sense of its precariousness, and by an awareness of the perpetual proximity of disintegration." Saeculum: History and Society in the Theology of St. Augustine 177.
Wednesday, October 2, 2013
John Gray has an incisive and learned comment on the occasion of the first English translation of Giacomo
Leopardi’s Zibaldone–partly a notebook and partly a diary from this brilliantly melancholy Romantic mind. Much of Gray’s commentary considers Leopardi’s relationship to Enlightenment rationalism, on the hand, and Christianity, on the other. For those with an interest in Leopardi’s political and moral thought, may I also recommend Joshua Foa Dienstag’s superb discussion of Leopardi in his Pessimism: Philosophy, Ethic, Spirit.
Probably Leopardi’s poetry (his “Canti” especially) is the best known of his corpus, but my favorite of his work has always been Le Operette Morali or “Little Moral Tales.” These have been translated into English before, and for some years, I have set myself the project of doing a new translation. Let’s just say it’s in progress.
Here is a translation (Iris Origo and John Heath-Stubbs) of the opening passages from the first of the Operette Morali, “The Story of the Human Race”:
The story is told that all the men who first peopled the earth were created everywhere at the same time, and all as infants, and were nourished by bees, goats, and doves, as the poets describe in their fable about the nurture of Jove. They say, too, that the earth was much smaller than it is now, and all the land was flat, that the sky was starless, that there was no sea, and that there was much less variety and magnificence in the world than we see there now. But men, nevertheless, delighted in the pleasure they took in regarding and considering the earth and sky with great wonder, thinking them most beautiful, and not only vast but infinite in size, majesty, and loveliness; and they also nourished very joyous hopes, deriving an incredible delight from all their awareness of this life, and became most contented, so that they almost believed in happiness.
Having thus passed their childhood and early youth most sweetly and having reached a riper age, a change came over them. For their hopes, which they had postponed from day to day until then, had not yet been realized, so that they lost faith in them. And they did not feel that they could still be content with what they were then enjoying, without some promise of an increase of happiness, particularly as the appearance of nature and of every part of their daily life–whether because they had become accustomed to them, or because their spirits were no longer so lively as they had once been–no longer seemed as delightful and pleasing to them as in the beginning. They wandered about the earth visiting very distant regions–for they could do so easily, since the land was flat and not divided by seas or any other impediments–and after many years most of them became aware that the earth, even though it was large, had definite boundaries, instead of ones so vast that one could not define them; and that, but for a few very slight differences, all the places in the earth and all its inhabitants were just alike. And their discontent increased so much on this account that, though their youth was scarcely at an end, they were all overcome by a conscious distaste for their own nature. And in their manhood, and still more as their years declined, their satiety was converted into hatred, so that some of them came to be so despairing that they were no longer able to bear the light and the life they had at first loved so much, and thus of their own accord–some in one way, some in another–they brought their life to an end.
It seemed terrible to the gods that living creatures should prefer death to life, and that–without the compulsion of necessity–they should become the instruments of their own destruction….Therefore, Jove, having decided–since it seemed to be necessary–to improve the human condition and to help it to further the pursuit of happiness, reached the conclusion that the chief human complaint was that things were not as beautiful, various, and perfect as they had believed at first, but instead were very restricted, imperfect, and monotonous….
For Jove’s strategy to cure this state of depression and “noia” (ultimately unsuccessful, I’m afraid), get yourself a copy of Le Operette Morali.
Wednesday, September 25, 2013
A few additional thoughts on the convergences and divergences of law and the academic study of religion, prompted by thoughtful emails from legal and ASR scholars Nelson Tebbe and Donald Drakeman (here's my earlier post on the topic).
Methodological Distinctiveness
Both law and ASR may be similar in that they harbor anxieties about their methodological uniqueness and about the autonomy of their disciplines as fields of academic inquiry. In law, this has been a perpetual worry that became particularly acute in the 20th century, as scholars from Pound to Holmes to Posner have argued compellingly for law's non-autonomy. Indeed, Posner has advocated the project of "overcoming" law: what takes the reins after law has been overcome is economics, philosophy, political science, or some other discipline with truly independent methodological bona fides (it's mostly economics for Posner). Though it is not my field (and so I hope to be corrected by those who know better), my sense is that ASR has some of these same anxieties but in its case, the anxieties are connected to the conceptual distinctiveness of the subject matter that it studies. Certainly in law, self-justification and disciplinary apology are not unknown.
Practice and Theory: Maintaining or Collapsing the Division?
Both law and ASR have roots as practical endeavors--as trades and professions, rather than as purely academic subjects. For law this is obvious; for ASR the root is theology and ministry. And law schools and divinity schools historically functioned to prepare tradesmen; indeed, both continue to operate primarily to train future practitioners of their respective trades.
My friend Nelson Tebbe points out to me that Yale Law School Professor Paul Kahn notes some of these similarities in his book, The Cultural Study of Law: Reconstructing Legal Scholarship. Kahn's project is precisely to help legal scholarship get over its past professional association, in much the same way that ASR has attempted to transcend its own. Here's an interesting passage from early in Kahn's book:
When lawyers think about contemporary legal theory, they are likely to express the view that it is too theoretical, too disconnected from the practice of law to be of any interest or use. In fact, the problem is exactly the opposite. Theory has substantially failed to separate itself from practice. The reforms offered by legal theorists may often be impractical, but the central assumption of both the scholar and the lawyer-critic is that reform is the appropriate end of scholarship. The lawyer-critic wants only to replace the poor--meaning impractical--reform proposals that emerge from the academy with better ones.
By taking up the project of legal reform, however, the scholar becomes a participant in legal practice and, therefore, a part of the very object that he or she has set out to investigate. The collapse of the distinction between the subject studying the law and the legal practice that is the object of study is the central weakness of contemporary legal scholarship. "Collapse" does not happen at a moment in time, as if there were first a separation of subject and object, which suddenly disappeared. The legal scholar comes to the study of law already understanding herself as a citizen in law's republic. She is committed to "making law work," to improving the legal system of which she is a part. Collapse refers to the failure of an analytic possibility, not some sort of transitional experience.
I believe that Kahn is right about this: there is a tension that permeates legal scholarship that is in some ways a product of its historical situation within a practical discipline alongside its long tradition of rigorous academic study (dating at least to the University of Bologna in the medieval period). Sometimes, legal scholars do not negotiate this tension successfully.
But where Kahn criticizes the collapse of theory into practice, one might just as readily question the collapse of practice into theory that he recommends. It has always seemed to me that one of the strengths and unique points of legal scholarship lies in its preservation of the separation of theory and practice. That is, its strength lies in negotiating that separation, and in refusing to collapse it into either constituent category. Legal scholarship is perched between two worlds, and it is only in this precarious posture that it retains both an internal and an external perspective on its subject. If it fell to one side or the other--if the separation on which it depends really did collapse-- what methodological tools would the legal scholar use to analyze law? Precisely those of the economist, the philosopher, the political scientist, or the ASR scholar.
The Role of Doctrine
Likewise, as I have noted before, law schools and schools of theology or divinity are the only ones I can think of in which the idea of doctrine is intrinsically important. This is in part because these disciplines are specially attuned to the authoritativeness of the past. Other disciplines have no such commitments--indeed, their commitments may run in a very different direction. It is not clear to me what perspective ASR has on the role of doctrine, but it would not be surprising that the less closely the discipline associates itself with schools of theology or divinity schools, the more it would embrace a critical posture toward doctrine.
The other difference in this respect is that doctrine provides a coordinating function in law and theology that simply does not apply in other areas of study. This function of doctrine is, of course, connected to law's managerial role and its internal perspective on the customs and traditions of the specific society in which it operates. This role and this orientation are not shared by most other disciplines.
Tuesday, September 24, 2013
I am greatly looking forward to participating in a conference next month called, "The Politics of Religious Freedom," and hosted by four scholars who have been at the forefront of drawing connections between the academic study of religion (or religious studies) and law--Peter Danchin, Elizabeth Shakman Hurd, Saba Mahmood, and Winnifred Fallers Sullivan.
The title of my panel is "Religion and Politics After Religious Freedom." With the organizers' permission, I am posting some comments that I wrote up in response to that subject. My sense is that while there may be some issues specific to the particular interdisciplinary relationship of law and the academic study of religion, at least some of the points I make may apply more broadly to the question of law's distinctiveness as both a practical and an academic discipline. I welcome your thoughts.
My work considers the religion clauses of the First Amendment to the United States Constitution and the body of federal and state laws protecting religious freedom in the United States. One theme in my work involves doubt about the law’s capacity to protect everything worth protecting about religion and religious practice. Here the law is limited and imperfect—both because of the limits of human reason and because of the inevitable conflicts of human interests and aspirations. The law’s limits come sharply into focus for what I have called “comic” theories of religious freedom—theories that reduce religious freedom under the Constitution to one or a small set of values (most commonly equality, neutrality, and the separation of church and state). None of these comic theories includes a sufficient accounting of the costs (including the costs to religious freedom) of such a reduction. These are some of the ideas explored in my book, The Tragedy of Religious Freedom.
The topic of our panel is “Religion and Politics after Religious Freedom,” and there are several ways in which my views are sympathetic, and might even converge, with the project of exploring what might come “after” certain conceptions of religious freedom. By reducing the reasons to protect religious freedom under the Constitution to single values such as equality or neutrality, some comic conceptions of it flatten legal disputes in ways that fundamentally misconstrue the true nature of the conflicts within them. Since what goes under the label of religion is culturally contingent, multifarious, and multifunctional—ideological, personal, political, institutional, communal, a phenomenon of cultural identity and at the same time a source of trans-temporal truth—one ought to expect the same variety, conflict, and incommensurability among and within the conceptions of religious liberty cherished by particular communities and enlisted to protect religion under the Constitution.
It may be that legal conceptions of religious liberty not only are insufficiently capacious to accommodate the welter of reasons to protect religious freedom (this would not be a failing unique to this area of law) but are also so grossly inadequate as to demand some radical alternative. We would, in that case, be well-advised to begin thinking about what should come “after” laws and theories that are irredeemably maladapted to the purpose. But before reaching this conclusion, we ought at least to move away from comic accounts of religious liberty and begin to hear the music of religious freedom in a more tragic key—in a way that embraces a plurality of values and that necessarily involves sacrificing ends about which we care deeply.
In other ways, however, my views are in at least some tension with the project’s ambitions to get past, or over, or somehow beyond religious freedom. I suspect that this skepticism about getting beyond religious freedom may relate to broader differences of interest, focus, and purpose between the disciplines of law and the academic study of religion (ASR).[1] To indulge in an overgeneralization (though one that, I hope, captures something true): ASR scholars are interested in dissolving religion; legal scholars are interested in managing it. There are several reasons that the pungent and interesting critique of religion and religious freedom that has developed in ASR scholarship has been relatively slow to affect law and legal scholarship.[2]
Continue reading
Monday, September 23, 2013
I'm grateful to Richard Reinsch of the excellent Law and Liberty blog (a project of The Liberty Fund) for discussing The Tragedy of Religious Freedom with me. If you are not familiar with the resources available at the Liberty Fund, you should check them out. I use their extensive on-line library all the time and they have many interesting essays, book reviews, and posts.
UPDATE: And here's a review in the Law and Politics Book Review by political scientist Jesse Merriam. Here's the conclusion, which both gives a sense of Professor Merriam's (important) criticisms of the book and contains a little nice stuff too:
If DeGirolami truly is going to provide a middle-ground theory, one in which both theory and conflict can co-exist, we need to know more precisely how history and precedent can guide us. The reader will likely find that DeGirolami does not satisfy this standard. Nevertheless, DeGirolami does provide an important service in probing and pushing us closer to this understanding. And something that must be emphasized here is that he performs this service with a clarity, elegance, and intellectual depth surpassing almost every work in this field. TRAGEDY OF RELIGIOUS FREEDOM is an excellent starting point for a discussion of how to arbitrate the principled conflict underlying church-state adjudication, and in starting this discussion DeGirolami does an exquisite job of defending his approach. For these reasons, it is not only an important but also an immensely enjoyable book to read.
