Friday, September 14, 2012
The Catholic Southern European Sybarite
Don't miss my colleague Mark Movsesian's reflections on the clash of the North and the South (of Europe). And then go hear L'Incoronazione di Poppea in the company of a nice Barolo.
Studying Conflicts Without Solving Them: An Agenda
I participated in a terrific conference yesterday organized by the Berkley Center for Religion, Peace, and World Affairs at Georgetown. The master of ceremonies, Tom Farr, did a wonderful job of putting interesting panels together. And our own moderator, Tom Banschoff, put a series of provocative questions to our panel. I learned a lot from my good co-panelists, Cathy Kaveny and Mark Rienzi, and was happy to see and listen to many old friends and meet new ones (I am now on the train home with some spotty internet access, and so will forbear from linking to the various places where you can learn about the conference -- at some point, a video will be available for those who need a sleep aid).
Our panel's overarching subject was conflict between religious liberty and other rights. My initial comments had to do with the importance of conflict -- not only its inevitability, but indeed (and more controversially), its positive desirability as a reflection of the reality of our respective and very different backgrounds, traditions, and memories, but also as a reflection of our internal struggles to manage the clash of sundry values as to which we each hold strong allegiances.
But I realized -- both throughout the day and during the panel itself -- that my approach and that of others may be slightly different, and in a way that maybe it would be helpful to spell out. During the conference, there was sometimes mention, by some of the speakers, about the need to "build bridges" or to reach mutual agreements or to "solve" conflicts with those with whom one disagrees. Provided that compromises are undertaken at the right level of particularity, I think these are all very worthy goals. They are important as a matter of practical getting along. They are important as a political and legal matter. And they are important inasmuch as an irenic state of affairs is generally welcome.
But I do not think that bridge-building is the only activity that needs pursuing. There are other projects too. Because of the depth and complexity of the conflicts at issue in many of the contemporary controversies addressed by the conference -- indeed, because of the central importance of conflict -- it seems to me that some study of the conflicts themselves is worthwhile -- a study which would be undertaken without the self-conscious and more specifically practical aim of "solving" them. The project would be simply to understand them, and if that were accomplished, it'd be a good day's work. It also might be the case that taking the measure of a conflict can be achieved more effectively and more deeply without an underlying impulse or motivation to reach a state of harmony, and without the conviction that harmony must somehow be possible.
Perhaps it might be useful to offer some concrete examples of the beginnings of an agenda for the study of conflict as applicable to some of the specific controversies swirling about today. The list surely is not and is not intended to be complete. The main point of this post is methodological. It is about what projects are worth pursuing.
1. What are the conflicting meanings and understandings of various values and concepts which one hears about so often -- values like "health," "autonomy," "equality," "religion," "liberty," and "rights" -- within the particular contexts in which they are invoked? How do these values and concepts fragment (if they do) on closer inspection into rival values and concepts? For example, what do the contending sides in a given dispute mean by "health"? How does the value of "health" interact with other values, like "autonomy," when these are invoked together? In what precise way are these and other values used when they are invoked in support of particular policy aims? Are they always invoked consistently? Sometimes? (I do not mean in the least to imply that consistency is a cardinal virtue.)
2. What is the ranking or ordering of values that different constituencies assign to these values when they conflict? What is the ranking or ordering that different constituencies assign to these values when (and if) the values break down into sub-values, or sub-sub-values. Is there consistency in the ranking of values, or does the ranking of values change depending on the controversy at issue. For example, does "health" always or only sometimes trump "liberty"? If not always, under what circumstances does "health" trump "liberty," and why? What drives the ranking of values? Another larger or covering value? A more general vision of the good life? What happens if values are not systematically rankable in this way?
3. As to which social unit -- the institution or the individual -- does religious liberty attach? Always both, or only sometimes? When the religious liberty of the individual conflicts with the religious liberty of the state, which is more important? If context matters (as it usually does), which contexts matter? Can we understand and see patterns in the priorities set by different sides in a given conflict?
4. What is the appropriate role of law? When ought the law to step in to decide a conflict (resolve is hardly the right word here). How broadly or narrowly should "rights" be defined? Should new legal rights come into being over time, and if so, how should we decide when and what they should be? Is the law the best vehicle for the negotiation of conflict? What are the different views on this question?
5. What is the proper understanding of the right to religious liberty? Is a right to, say, sexual autonomy also properly characterized as a right to religious liberty? If so, what is the proper scope of the right to religious liberty (under the Constitution? under a statute like RFRA? under state constitutions or state statutes?) and what are its limits? Does the right to religious liberty continue to be a useful concept for us, and what makes it useful in light of the contestability of the category of religion?
As I say, these are only a few questions that occurred to me (as always, after the panel was over). But I think they speak to a somewhat different agenda than that of solving conflicts. The agenda is one of studying without solving. It is certainly possible that the projects of studying conflict and reaching viable practical compromises might be mutually beneficial. But the projects are, I think distinct, and perhaps best pursued distinctively.
Tuesday, September 11, 2012
Gillespie, "The Theological Origins of Modernity"
I have been reading and greatly enjoying Michael Allen Gillespie's The Theological Origins of Modernity
(2008), a learned and original intellectual history of modernity. Gillespie's thesis is that the conventional account of modernity as setting itself in opposition to or as rejecting altogether religion and theology is mistaken. Instead, as he puts it early in the book:
[F]rom the very beginning, modernity sought not to eliminate religion but to support and develop a new view of religion and its place in human life, and did so not out of hostility to religion but in order to sustain certain religious beliefs. As we shall see, modernity is best understood as an attempt to find a new metaphysical/theological answer to the question of the nature and relation of God, man, and the natural world that arose in the late medieval world as a result of a titanic struggle between contradictory elements within Christianity itself . . . . I will argue further that while this metaphysical/theological core of the modern project was concealed over time by the very sciences that it produced, it was never far from the surface, and it continued to guide our thinking and action, often in ways that we do not perceive or understand. I will argue that the attempt to read the questions of theology and metaphysics out of modernity has in fact blinded us to the continuing importance of theological issues in modern thought in ways that make it very difficult to come to terms with out current situation.
Gillespie goes about making his case by beginning with the contest between scholasticism and nominalism (the view that what is real is particular and individual, not universal, and so "God [cannot] be understood by human reason but only by biblical revelation or mystical experience"). The conflict was, as he says above, primarily and originally a late medieval conflict, not one which came into being in the Enlightenment (let alone later). "The God that Aquinas and Dante described was infinite, but the glory of his works and the certainty of his goodness were manifest everywhere. The nominalist God, by contrast, was frighteningly omnipotent, utterly beyond human ken, and a continual threat to human well-being. Moreover, this God could never be captured in words and consequently could be experienced only as a titanic question that evoked awe and dread. It was this question, I want to suggest, that stands at the beginning of modernity." (15)
One feature of the book that was particularly enjoyable for me is Gillespie's emphasis on the poet Petrarch as the representative both of this struggle and of the turn toward nominalism (in graduate school years ago, Petrarch's poems about Laura in the Canzoniere were one of my favorite things). I confess that before reading Gillespie's book, I had never thought about Petrarch as an important or even a notable figure with respect to these kinds of issues. Gillespie devotes roughly a chapter and a half to him. He claims that Petrarch was the first writer to face the nominalist challenge -- the view that "there is no divine logos or reason that can serve as the foundation for a political, cosmopolitan, or theological identity." (45) Confronted with the political and social chaos of the mid-14th century, Petrarch looked "not to the city, God, or the cosmos for support, but into himself, finding an island of stability and hope not in citizenship but in human individuality."
I cannot do justice to Gillespie's superb treatment of Petrarch, but here's a relatively late summary paragraph in his discussion:
It is difficult today to appreciate the impact Petrarch had on his contemporaries in part because we find it so difficult to appreciate his impact on us. Petrarch is scarcely remembered in our time. There are very few humanists or academics who can name even one of his works; and none of his Latin works makes it on to a list of great books. And yet, without Petrarch, there would be no humanists or academics, no great books, no book culture at all, no humanism, no Renaissance, and no modern world as we have come to understand it. Why then have we forgotten him? Several factors contribute to his oblivion: the neglect of Latin literature as literary scholars have increasingly focused on national literatures, changing scholarly tastes and fashions, and the fact that many of his works fall outside of familiar genres. But the real cause lies deeper. Petrarch seldom tells us anything that we don't already know, and as a result he seems superfluous to us. But this is the measure of his importance, for what he achieved is now so universally taken for granted that we find it difficult to imagine things could have been otherwise. (69)
One last side note, and please forgive the musical addendum, but Franz Liszt certainly did not forget Petrarch. Have a listen to his extremely beautiful song cycle, "Les Années de Pèlerinage" ("The Years of Wandering" -- which is just what Petrarch did for most of his life), and particularly Year 3 in that cycle ("en Italie"), which contains some wonderful settings of several Petrarchan sonnets. Number 47 is really spectacular and, maybe, captures a little of what Gillespie is talking about.
Thursday, September 6, 2012
Conference: Catholic Perspectives on Religious Liberty at Georgetown
I'll be participating in a conference next Thursday, September 13 -- "Catholic Perspectives on Religious Liberty" -- organized by Tom Farr and hosted by the Berkley Center for Religion, Peace, and World Affairs at Georgetown University Law Center. The keynote speaker is Cardinal Donald Wuerl and the balance of the conference is organized in 3 fairly conversational panels, each of which is devoted to a separate topic. If you are able to come, please stop by and say hi. More details here.
Beards
The redoubtable Peter Berger has a winning column on them. A few years back I had one, but despite Berger's plausible claim that "the power of the beard as a profane symbol of adult masculinity should not be underestimated," my wife for some reason did not hold my beard in very high esteem.
Berger's post is prompted in part by the legal controversies involving the Amish beard cutting incident in Cleveland, now being tried as a federal "hate crime," and the trial of alleged murderer Major Nidal Hasan in Fort Hood, Texas, who was ordered to shave his beard for trial. Here is Berger's beards and religion angle (but you really should not miss the rest):
Needless to say, religion is a particularly rich field for the beard as sacramental symbol. There are significant differences between Latin and Greek Christianity. Bearded priests have become the norm in Eastern Orthodox churches; in the Roman Catholic Church, while there are some monastic orders whose monks wear beards, secular priests are normally clean-shaven. I don’t know whether there are “grooming regulations” in either case, nor do I know of any in Protestant churches. Mormons stand out: Young men going out on their two-year missionary stints must be clean-shaven, as must students at Brigham Young University. Beards have become the trademark of Orthodox Judaism, though the Torah does not command them directly (Leviticus only has rules for shaping the beard). I would imagine that there are different deductions from these rules in the Talmud. Jews in mourning, while “sitting shive”, don’t shave and let the stubbles sit during this period. Sikhs are very intent on their luxurious beards. Many Hindu ascetics have beards, but that is not so much a symbol as the result of their having no possessions, not even a razor (they do beg—is there no pious barber who can donate a free shave?). I have no knowledge of Buddhist attitudes to facial hair. But of course we are most aware of the role of beards in contemporary Islam. Beards are the male equivalents of female headgear. If young men in Turkey come out of the closet as Islamists and consequently drive their Kemalist parents crazy, their young sisters achieve the same result by covering their hair with the scarves that signify Islamic modesty. As far as I know, there is no commandment to wear beards in the Koran, though there is an authoritative tradition (hadith) according to which the Prophet Muhammad did issue such a commandment.
I promised that there would be no theoretical or practical conclusions. Let me just say this: There are very few “natural” symbols. (Though the lion may be a “natural symbol” of might, as against the mouse.) Beyond such clear cases, anything can symbolize anything. Symbols change over time. As to beards, often they symbolize nothing beyond themselves—as Freud did not say, but might have said: Sometimes a beard is just a beard. Beards have carried all sorts of symbolic freight. In the area of religion, it would be nice if beards symbolized moderation and tolerance.
Wednesday, September 5, 2012
Review of Judge Wilkinson's Book
I have a review of Judge J. Harvie Wilkinson III's book, Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance, over at The New Republic. I have the rough sense that my take is generally more positive than what I've seen from other legal academics and commentators, but perhaps you will let me know.
Tuesday, September 4, 2012
Happy Birthday, Anton Bruckner
The great composer and renowned organist Anton Bruckner was born today in 1824. Bruckner's retiring
personality has led to relative obscurity (at least by comparison with his showier contemporaries Brahms and Wagner). But Bruckner's religious music -- especially his Masses -- is a delight. Here is his Ave Maria. And here's a recording of my favorite of his great big sprawling magnificent symphonies -- #4 in E flat, the "Romantic" (you've got to jack up the volume full blast to get the full effect of the highs and lows in Bruckner...Günter Wand conducting in his later years does a really nice job).
At right, the "Bruckner organ" at the Augustinian priory, St. Florian's, in Austria.
Don Drakeman Blogging at CLR Forum
The extraordinary Donald L. Drakeman is blogging with us over at CLR Forum for the month of September. If you are not familiar with Don's work, you should immediately get yourself a copy of his excellent Church, State, and Original Intent (CUP 2009). His first post (one of a three part series) discusses the unfortunate neglect by students of church and state of the writings and work of Theophilus Parsons.
Sunday, August 26, 2012
Eliot on Education and Religion
In my Catholic Social Thought course, our first class was occupied by what I call "meta-issues" -- questions involving the nature of the course, its place in a law school curriculum, and its relevance to the lives of future lawyers. One of the difficult questions involves the relationship of academic inquiry, academic freedom, and the authentic association of an institution of higher learning with Catholicism. We read Ex Corde Ecclesiae, and we also read material in some tension with it; I particularly like a couple of Stanley Fish's chapters in Save the World on Your Own Time as one type of counterpoint.
This evening I read an interesting old essay by T.S. Eliot called, "Modern Education and the Classics," which I may use in the future. Modernists like Eliot and Pound can be useful on these sorts of questions, as they were occupied with their own varieties of 'aggiornamento' ("make it new!"). Here is one helpfully complicating passage, at least to introduce some doubt against the general skepticism that any relationship does or could exist between education and religion:
Questions of education are frequently discussed as if they bore no relation to the social system in which and for which the education is carried on. This is one of the commonest reasons for the unsatisfactoriness of the answers. It is only within a particular social system that a system of education has any meaning. If education today seems to deteriorate, if it seems to become more and more chaotic and meaningless, it is primarily because we have no settled and satisfactory arrangement of society, and because we have both vague and diverse opinions about the kind of society we want. Education is a subject which cannot be discussed in a void: our questions raise other questions, social, economic, financial, political. And the bearings are on more ultimate problems even than these: to know what we want in education we must know what we want in general, we must derive our theory of education from our philosophy of life. The problem turns out to be a religious problem.
Wednesday, August 22, 2012
The Problem of Deep Retribution and Rehabilitation
Prompted by an inquiry from Rick, I took a look again at Jeffrie Murphy's wonderful book, Getting Even: Forgiveness and Its Limits (2003), about which I've written a little before. Chapter Nine, entitled "Christianity and Criminal Punishment," contains the following interesting passage about the relationship of Christianity and retribution. But I think it also says something useful about rehabilitation.
But what about retribution? Is it a legitimate objective on a Christian view of punishment? . . . . This depends, I think, on just what one means by "retribution." In the philosophical literature on punishment, retributive punishment is usually understood as giving the criminal what he, in justice, deserves. There are, however, at least six different accounts of what might be meant by "desert" and thus at least six different versions of retributivism: desert as legal guilt; desert as involving mens rea (e.g., intention, knowledge); desert as involving responsibility (capacity to conform one's conduct to the rules); desert as a debt owed to annul wrongful gains from unfair free riding (a view developed by Herbert Morris); desert as what the wrongdoer owes to vindicate the social worth of the victim (a view developed by Jean Hampton); and, finally, desert as involving ultimate character -- evil or wickedness in some deep sense (a view that Kant calls "inner viciousness") . . . .
It seems to me that there is no inconsistency between the essentials of Christianity and the first five forms of retribution noted. With respect to the sixth, however -- what I will call "deep character retributivism" -- there does seem to me to be an inconsistency . . . . I have earlier argued that judging the very soul of another human being and attempting to decide his ultimate desert is beyond the scope of human ability and must be viewed as a task either to be left undone or reserved for God. Human beings simply do not know enough to make such judgments with accuracy. In addition, human beings are simply not good enough to make such judgments without hypocrisy . . . . [T]his problem grows in seriousness the greater the depth of inquiry into the inner life -- for example, I suspect that judgments of intention (and other mens rea judgments) are more reliable and safer than judgments of inner viciousness, judgments that a person is hopelessly rotten to the core. They are safer because they do not to the same degree tempt us to cruelty and to dismissing the very human worth of the wrongdoer.
The passage is a very nice reflection on a species of "deep" retributivism that Murphy finds problematic for Christianity, but it seems to me that the nature of the critique might also pose similar challenges to a "deep" species of rehabilitation. One of the underappreciated qualities that unites retributivism and rehabilitation (again, on certain accounts of each of these functions of punishment) is confidence in the state's capacity to conduct fairly thoroughgoing characterological inquiries, and then to act on those inquiries accordingly. This is not a quality shared by deterrence, general or specific, which depends much less (if at all) on deep character inquiry. The reasons for action in response to the inquiries differ, of course, but retribution and rehabilitation both depend to some extent on that basic sort of inquiry into human character -- the one in order to mete out (ultimate) justice, the other to bring about (ultimate) transformation. But if we do not know enough and are not good enough to pursue these "deep" inquiries for retributivist ends, then it seems to me that we should likewise be skeptical about our parallel capacities to pursue rehabilitative ends.
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