Another post about scholarly methodology -- this time in criminal law theory. One of the earliest posts I wrote here at MOJ was about the criminal law scholar Joshua Kleinfeld. What I like most about Josh's scholarship is his methodology -- one which takes an existing phenomenon in criminal law doctrine which has been missed, ignored, or marginalized by theorists, and applies philosophical tools to explore and understand it. Last time I posted about Josh's work, I talked admiringly about his very interesting German/US comparative piece on evil in criminal law. In my view, there are very few superb pieces of legal scholarship about the phenomenon of evil. Josh's is one of them.
His latest project is about what he describes as the role of "victimization" in criminal law -- "the idea that the moral status of a wrongful act turns in part on the degree to which the wrong's victim is vulnerable or innocent and the wrongdoer preys upon that vulnerability or innocence." Josh reproaches the conventional retributivism of the last 30 or so years for its failure to acknowledge the relevance of victimization, though he also carefully describes important limits on the relevance of victimization for purposes of both culpability and punishment.
There is too much to Josh's paper to summarize in a blog post -- it is rich with complex insights and I recommend it very much to readers interested in criminal law theory. But I do want to reproduce just a little bit from his conclusion. Josh's writing represents, I think, an interesting case in what are coming to be alternative or different or (a little bit) contrarian methodologies in fields that sometimes appear to be doing roughly the same sort of thing methodologically:
The central methodological idea behind this Article is that our existing social practices and institutions imply or reflect certain normative commitments—that values are immanent in social life—and that one important philosophical project in the law is to bring those immanent normative commitments to light. The idea is also that, by bringing those immanent commitments to light, we expose them to a distinctive form of critique. We effectively look in the mirror and ask, “Do I like what I see? Are these commitments ones I can reflectively endorse? And if so, am I living up to them? Am I realizing them in the right way?” This is social analysis and critique from the inside, and the intellectual tradition associated with it, though it has been called by various names, is the tradition of normative social theory. It is an Hegelian tradition; to say that a moral concept like victimization is implicit in criminal law already, to make it one’s object to render that commitment explicit, has a distinctly Hegelian flavor. This Article is an entry in the Hegelian, social-theoretic project.
The Hegelian approach to philosophy in law is, I submit, more faithful to and respectful of law than many others. Rather than philosophy dropping in on law like an imperious and alien visitor, delivering pronouncements and then flying off again, the Hegelian, social-theoretic approach takes law not just as an instrument with which to implement the conclusions of an extralegal philosophical inquiry, nor merely the site from which to launch such an inquiry, but as an object of study with a certain moral content already in place, which philosophy can bring to light and expose to question.
Others with philosophical training will know much more than I do about the extent to which this project is Hegelian. But I thought the gist of the methodological approach -- which is also very much reflected in Josh's piece on evil -- is an extremely interesting, unusual, and worthwhile contribution to scholarship in criminal law theory.
Thursday, June 14, 2012
My colleague and friend, Mark Movsesian, has a new piece up at the Oxford Journal of Law and Religion, Crosses and Culture: State-Sponsored Religious Displays in the US and Europe. (Incidentally, do check out the journal, as it's got a wealth of pieces that may be accessed, for a time, for free.) Comparativists and students of religious liberty will enjoy and learn a lot from the piece. The abstract follows.
This article compares the recent jurisprudence of the US Supreme Court and the European Court of Human Rights on the question of state-sponsored religious displays. Both tribunals insist that states have a duty of religious ‘neutrality’, but each defines that term differently. For the Supreme Court, neutrality means that government may not proselytize, even indirectly, or appear to favour a particular church; neutrality may even mean that government must not endorse religion generally. For the ECtHR, in contrast, neutrality means only that government must avoid active religious indoctrination; the ECtHR allows government to give ‘preponderant visibility’ to the symbols of traditionally dominant churches. The different conceptions of neutrality reflect institutional and cultural realities. In particular, the differences reflect what sociologists of religion describe as the ‘American’ and ‘European’ religious models.
Because issues of methodology are of special interest to me, here are some of Mark's reflections on that question -- and in particular about the function of comparative scholarship -- in the conclusion to the piece (I've omitted the footnotes here, but you will see them in the piece):
My purpose in this article has been comparative and critical: I have attempted to explain different legal regimes in terms of fundamental institutional and cultural commitments. Comparative work, particularly interdisciplinary comparative work, is still a bit new in law and religion scholarship. As Grace Davie recently has written, law and sociology ask different questions and rely on different methods; ‘conversations’ between lawyers and sociologists can therefore be ‘difficult’. Nonetheless, such conversations are essential. For law both reflects and influences underlying social conditions. In Mary Ann Glendon’s phrase, ‘law, in addition to all the other things it does, tells stories about the culture that helped to shape it and which it in turn helps to shape: stories about who we are, where we came from, and where we are going’. The law on state-sponsored religious displays reveals very different understandings about the place of religion in American and European society. This article is an effort to illuminate those understandings and contribute to an emerging path in law and religion scholarship.
