Admirers of the writing of Michael Oakeshott may want to read Aryeh Botwinick's new book, Michael Oakeshott's Skepticism. I am not an Oakeshott scholar (though I have more than a passing interest in his philosophy of education), but still I am uncertain about some of the conclusions that Botwinick reaches: e.g., that Oakeshott is a "political philosophical liberal," defined as "someone who calls into question the claims to authority and knowledge advanced by devotees of both Revelation and Reason." Is John Rawls a political philosophical liberal, too, on this definition? Botwinick at one point says that Oakeshott's conception of "conversation" "can also be related to his political theory proper in ways that are evocative of Rawls, Ackerman, and Hobbes." (138) Really? Given Oakeshott's deep interest in Hobbes, that connection makes sense to me, but I am more doubtful about the link to Rawls, let alone Ackerman. This seems to me a quite liberal reading of Oakeshott's conception of conversation.
Nevertheless, the book is insightful and interesting on the subject of Oakeshott and religion. Oakeshott is not known as a religious thinker and much of his work did not explicitly concern religious subjects (some of his early work did, but he moved away from it in his mature writing). But Botwinick argues that Oakeshott's ethic of skepticism gave rise to a type of mysticism which he claims is evocative of Pascal, St. Anselm, and Nicholas of Cusa. A bit:
According to Oakeshott, we are not able to pierce through to the governing factors as to why the customs, habits, and traditions that we adhere to have the structures and contents that they do . . . . 'Tradition' on one definitional level serves as a surrogate for Revelation. It is what Revelation gets deflated into once the logical conundrums surrounding the idea of God are confronted . . . . Tradition itself, however, partakes of the inscrutability of its mysterious source in exactly the way that Nicholas projects: it irradiates us -- but we cannot unmask it as long as we continue to relate to it as tradition. (97)
In the wake of the decision in Snyder v. Phelps, I have been thinking a little about the contexts in which law recognizes the pain that words can inflict. There are interesting tensions across various spheres of law -- collisions of values -- between the good of speech and the evil of speech.
Consider criminal law. One might think that criminal law is totally unconcerned with speech -- what difference does it make that someone says something nasty insofar as the criminal justice machine is concerned? But actually it can make a big difference: words can be highly relevant. Hate crimes are one example. So are crimes of heat of passion upon adequate provocation. The old common law rule was that words alone, no matter how outrageous or provocative or painful, could never transform a killing that would otherwise constitute murder into manslaughter. That category of mitigation was restricted to very specific situations, one of which was the discovery of one's spouse in flagrante delicto. Perhaps surprisingly, the modern trend is to admit the possibility that words alone might well be enough to render an ordinary intentional killing a different sort of killing -- one which is punished much less severely. And states that follow the Model Penal Code approach take an even more liberal view of the evil of words: so long as a jury concludes that a defendant acted with extreme mental or emotional disturbance when he killed, he will be convicted of manslaughter, not murder. The onset of extreme emotional disturbances is frequently actuated exactly by the infliction of verbal pain.
Why is the criminal law concerned with the infliction of verbal pain? What is its relevance? I know of two explanations, both of which may have interesting implications for the law of free speech. The first is that people who are provoked by words that they find exceptionally painful, and who react to the infliction of verbal pain by killing, are weak people -- people acting out of a kind of akrasia. Given our collective fallenness -- our post-lapsarian wretchedness -- we can understand empathetically how a person might succumb to the animal urge to violence in response to the infliction of verbal pain; we can excuse such acts. The second explanation is quite different: the infliction of verbal pain warrants some sort of response, justifies it. It is wrong to inflict verbal pain, and he who is wronged in such a way is entitled to have the wrong righted. Of course, he is not entitled to kill the provoker, but his killing in response to the infliction of verbal pain is less wrong -- and therefore more right -- than it otherwise would have been.
Here is the puzzle for the law of free speech as well as criminal law: generally (with only a handful of exceptions -- pornography, fighting words, and a few others), we assiduously protect the content of speech, particularly when it deals with a matter of public or common concern. We do this because of the goodness of speech -- its familiar and much touted intrinsic and instrumental benefits. But how do we square this near-absolute protection for the content of speech with the rule that words alone can and often will mitigate murder to manslaughter?
It is often said that the most absolute protection for speech is warranted where the content of the speech concerns political or moral issues. Speech critical of the United States or the Catholic Church, as in Snyder, for example, merits the strongest and most absolute sort of protection. But notice that criminal law makes no such distinctions. If A is an extremely devout Catholic who takes insults about the Church very badly, and B says, "Your church is a damnable abomination" with attendant comments about pedophilia and the like, and A, in response, kills B, it will make no difference at all to the criminal law that B's speech was on a matter of public concern. The question whether his reactive killing warrants mitigation will be put to the jury just the same as if B had directed some highly personal and embarrassing insult at A.
The puzzle is that while in the free speech context, we say all of these wonderful things about the value of speech on matters of public concern -- how democracy-enhancing it is, how Millian in all the happiest and most rational ways -- in the criminal law context we are generally inclined to recognize the evil of speech, even speech that is concerned with core First Amendment matters. The disjunction is most difficult to square up if adequate provocation mitigation is taken to be a partial justification -- if we feel that inflicting verbal pain is a wrong that deserves to be righted, not by exonerating the defendant but by mitigating his punishment. How could it be right, good, to react violently to something which is goodness itself? But the tension remains even if we think of adequate provocation mitigation as an excuse. For if speech is really so good, so truth enhancing, so unqualifiedly beneficial, such an unambiguous blessing, why should an ordinary, fallen man react to painful speech with violence -- and not just any violence, but the worst kind? Below the glassy surface of our sunny encomia to free speech, especially speech prototypically protected by the First Amendment, our real feelings and intuitions about it are actually much more mixed -- speech can be, and often is, just as evil as it is good.
The Supreme Court has issued Snyder v. Phelps, the case about the Westboro Baptist Church's desecration of a serviceman's funeral by picketing the funeral with outrageous signs at about 1,000 feet in distance from the funeral site. When the funeral attendees processed out, they came within 200-300 feet of the protesters, and the deceased's father could see the tops of the signs, though not what was written. The father later saw the whole abomination on the Internet, along with further personally offensive and deeply hurtful material directed against his son. The Church won. Though I am not surprised by the judgment, I respectfully disagree with it, and I have to say that I am surprised by the fact that there was only one dissent (Justice Alito).
In the first place, Chief Justice Roberts raises a number of facts that the majority finds salient that I simply don't: the Chief Justice says, for example, that the picketers "did not yell or use profanity." For me, carrying signs saying “God Hates the USA/Thank God for 9/11,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You" is quite profane enough (vulgar, that is to say popular, profanity is not the only variety). Second, I disagree that signs displayed at a funeral and directed at the congregants containing the phrase "You're going to Hell" or "God Hates You" are at all matters of public concern, and I agree with Justice Alito that mixing in some statements that ostensibly are "public" ought not categorically to immunize the expression. Third, this speech occurred right next to a private funeral -- its context was plainly private. I recognize that technically, formally, the protesters were situated on a public street. But that fact does not, in my view, do justice to what a "contextual" analysis ought to be all about.
Finally, and most importantly, I disagree with the Chief Justice's statement that "any distress occasioned by Westboro’s picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself." That is true, again, only if one takes an exceptionally narrow view of what funerals are all about. Funerals are not simply occasions bounded in time and space by the beginning and end of the proceedings at the burial. Funerals are symbolic occasions to honor, mourn, and remember the dead. Their meaning and value extends well beyond the time between the moment of the cleric's first utterance and the moment that the body falls to earth. I recognize that this conception of a funeral creates problems of line-drawing. So be it. Whatever those problems might be, they are not implicated here, where protesters were only feet from the event itself and where their protest was flamboyantly and spitefully flaunted immediately thereafter. And far better to trouble ourselves about slippery slopes than to sacrifice one of the most cherished values that we and so many civilized peoples hold dear -- the value of honoring the dead -- on the altar of free speech.
Speech is, indeed, powerful, as the Chief Justice rightfully says. And it is precisely for that reason that speech rights ought to be strong, but not absolute; protected, but not inviolable. A regime of free speech absolutism even when we deal exclusively with matters of "public concern" (which was not the case here) is not, in my view, consistent with a state's responsibility to cultivate, to the extent that it can, the social and moral ecology of its people.
I am a fan of Richard Schragger's work on the Religion Clauses, especially his superb piece a few years ago on the role of localism in religious liberty in which he claimed, in part, that decentralized decisions that benefit or burden religious liberty ought to be given greater deference than analogous centralized decisions.
Professor Schragger recently posted The Relative Irrelevance of the Establishment Clause, a very interesting looking piece sounding related notes about the advantages of underenforcement of the disestablishment norm. From the introduction to the piece:
This Article argues (1) that a pervasive feature of the Court’s Establishment Clause jurisprudence is that the Court’s stated doctrine is underenforced or is irrelevant to a whole range of arguably pertinent conduct; (2) there are some legitimate reasons for this judicial underenforcement or irrelevance; and (3) to the extent the Court is capable of enforcing its stated nonestablishment principles, it can only do so indirectly by managing establishment in the political/legal culture that exists beyond constitutional law. How the Court does or fails to do (3) is the main subject of this Article.
A few last thoughts on the crime of depraved heart murder in New York -- the end of my depravedtrilogy. In previous posts, I accepted the received wisdom that depraved indifference murder is some sort of amalgam of extreme risk-taking regarding homicidal risk and a distinctive mens rea. The New York Court of Appeals adopted this view in People v. Suarez and People v. Feingold, overruling the older, Herbert Wechsler/Model Penal Code-inspired "objective circumstances" gloss. In this post, I want to sketch an argument that depraved indifference (or "heart," or "mind") murder actually has very little -- almost nothing -- to do with the extremeness of the risk-taking involved, and almost everything to do with the distinctive -- albeit elusive -- cast of mind connoted by the baroque term itself.
The etymology of depravity is Latin: "pravus" means crooked, warped, distorted and twisted. I speculate that adding the "de" further emphasizes and augments the sense of crookedness -- we're now talking about an additional quantum of deviance from an existing crookedness and distortion, a second-level quality of warped-ness.
Nevertheless, it's difficult to put one's finger on exactly what this quality looks like in the real world. Users of Joshua Dressler's criminal law textbook like me know that he points to some language from an Alabama court describing a "don't give a damn attitude." That's helpful, but for me it speaks to the "indifference" component of depraved indifference, and not so much to the quality of depravity. So what are we talking about?
The New York Court of Appeals's doctrinal struggle sheds some light on the question, but a little excavation is necessary to get at it, since the Court nowhere really puts two and two together. And the answer suggests not only that risk taking doesn't have much to do with it but also that it's a quality that finds elucidation not in a clean abstraction, but only in the welter of real facts.
John Elwood at Volokh discusses two law and religion cases that are scheduled at the Supreme Court's case conference today. It's interesting to me that both involve church autonomy questions -- whether and when the state ought to interfere with matters of church governance and management. The second case, Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, would involve the Court in a ministerial exemption issue. The terminated employee, through the EEOC, brought a claim under the Americans With Disabilities Act (according to the petition for cert. filed by Doug Laycock, she claimed in part that she was fired because of her diagnosed narcolepsy -- interesting).
I hope the Court takes Hosanna-Tabor, if only to declare itself on the ministerial exemption. The federal circuits have uniformly accepted the ME, though there is a difference of opinion about its scope. But the Supreme Court hasn't even officially ever recognized the doctrine at all. Arguably, it obliquely acknowedged the ME in NLRB v. Catholic Bishop of Chicago, where it said that "excessive entanglement" concerns necessitated that teachers in parochial schools be exempted from collective bargaining requirements. But it would be good to get a clear statement from the Court on the viability, let alone the reach, of the ME.
ADDENDUM: A knowledgeable commenter points out that the plaintiff is now proceeding only on a retaliation claim and has dropped the discrimination on the basis of disability claim.
Hot on the heels of my thoughts on depraved heart murder, the New York Court of Appeals today issued People v. Prindle, in which the defendant was in the process of stealing a snow plow blade (this year, I could certainly sympathize) when police responded to the scene and defendant took off in his van with the police in hot pursuit. The chase ended between 2 1/2 and 4 miles later, when the defendant crashed into another car, severely injuring the victim, who survived in a comatose state with terrible injuries before dying five days later.
The quirk about the case was that the trial court gave a jury instruction which tracked the law in the now-overruled, supposedly objective and morally shorn People v. Register. At the time of trial, Register hadn't been explicitly overruled yet, but it was on the way out. The trial court instructed that a finding of depravity depended on a decision that the defendant's "conduct, when objectively viewed," rose to a level of dangerousness "demonstrat[ing] an attitude of total and utter disregard" for human life. The defendant didn't object; so that's the standard that the Ct. of Appeals used.
In my previous post, I argued that a legal moralist view of depraved heart is perhaps counter-intuitively more defendant protective than an objectified view that focuses exclusively on risk-taking. The beauty of Prindle is that it manifests the utter inadequacy of the objective, morally denuded approach to depravity in another way: it is unfair.
In thinking about the very good questions that Professor George raises below, I was reminded of some of Bernard Williams's arguments in his critique of utilitarianism (the "against" of his classic work with J.J.C. Smart). Readers are doubtless familiar with Williams's points, but briefly to refresh the memory, one of Williams's examples deals with Jim, who is given the choice by a strongman of either shooting one person, or else shooting no one, in which case Pedro will kill twenty people.
Here is Williams:
"[W]hat occurs if Jim refrains from action is not solely twenty Indians dead, but Pedro's killing twenty Indians . . . . On the utilitarian view, the undesirable projects of other people as much determine, in this negative way, one's decisions as the desriable ones do positively: if those people were not there, or had different projects, the causal nexus would be different, and it is the actual state of the causal nexus which determines the decision . . . . The decision so determined is, for utilitarianism, the right decision. But what if it conflicts with some project of mine? This, the utilitarian will say, has already been dealt with: the satisfaction to you of fulfilling your project, and any satisfactions to others of your so doing, have already been through the calculating device and have been found inadequate. Now in the case of many sorts of projects, that is a perfectly reasonable sort of answer. But in the case of projects of the sort I have called 'commitments,' those with which one is more deeply and extensively involved and identified, this cannot just by itself be an adequate answer, and there may be no adequate answer at all . . . . It is absurd to demand of [the "committed" person], when the sums come in from the utility network which the projects of others have in part determined, that he should just step aside from his own project . . . . It is to make him into a channel between the input of everyone's projects, including his own, and an output of optimific decision; but this is to neglect the extent to which his actions and his decisions have to be seen as the actions and decisions which flow from the projects and attitudes with which he is most closely identified. It is thus, in the most literal sense, an attack on his integrity."
Criminal law teachers and scholars know that an unintentional killing evincing a "depraved mind" (or "heart") historically has constituted murder -- one whose culpability is generally on a par with an intentional killing. As part of my efforts this year to learn and teach more New York law to my criminal law students, I have been greatly enjoying the rich local doctrine in this area. The New York Penal Law uses the "depraved indifference" formulation, and, in a nutshell, the Court of Appeals relatively recently held that depravity is its own mental state, and cannot be captured by "objective" factors which relate solely to the degree of risk-taking. The latter was the older rule in a case from the early 1980s, People v. Register, where the aim had been in part to shear away what was perceived as a kind inappropriate legal moralism in the concept of "depravity" and to make it more neutral, more "objective." The result was that prosecutors began to charge defendants with both intentional and depraved indifference homicide -- an outgrowth of the fact that depravity no longer retained its own independent sense of culpability. It was the desire to do away with the distinctive moral opprobrium that attaches to depraved indifference which occasioned the prosecutorial practice of gamely bringing two charges that have no business standing side-by-side. Roughly five years ago, Register was overruled.
In my (limited) experience teaching criminal law, students have a difficult time wrapping their minds around the idea of depravity -- they want to think about it purely in terms of excessive risk-taking -- really, really excessive (murder) as compared with just plain old excessive (manslaughter). But the New York experience suggests that the older, morally laden language is more protective of defendants -- more protective exactly because keen to retain the distinctly culpable quality of "extreme wickedness, or abject moral deficiency," People v. Suarez, 6 N.Y.3d 202 (2005), that is the distinctive flavor of depravity.
As it happens, I'm working on a paper dealing with the thought of Sir James Fitzjames Stephen, an important Victorian-era jurist and one of the leading 19th century expositors of English criminal law. His descriptions of the culpability of particular offenses, often drawn from cases that he tried, are masterful. For criminal law teachers who are thinking about how to transmit the concept of the depraved heart, may I suggest the following tract, from the third volume of Stephen's magnificent History of the Criminal Law of England:
A long time ago, I was fortunate to work part time for about a year at a used and rare bookstore called McIntyre and Moore Booksellers (they were on Mt. Auburn Street back then, not way off in Porter Square). Present circumstances excepted, it was the best job I ever had. I learned a little bit about how to judge a book's value as well as how to repair beautiful but injured old books. I also discovered things that I know I would never would have come across -- a first edition of T.S. Eliot's "Murder in the Cathedral," an early edition of George Santayana's "The Genteel Tradition at Bay," and even -- for the first time -- a used copy of Harold Berman's "Law and Revolution," as well as lots and lots of other odds and ends. The beauty of the store was its physical orientation to books -- books needed to be touched, felt, fixed, glued, stacked, flipped through. The must of their oldness and used-ness had to be smelled, their collected dustiness inhaled. Part of the fun was to see and touch again the discolorations and brown spots that were the marks of prior readers, or to see a 100 year old inscription, and then another one about 50 years later, on a 200 year old volume. Some rare bookstores have the air of a holy shrine; you enter and can almost hear the Gregorian chant. Those can be great too, but my store was more earthily tactile, though some of its books could be quite valuable.
When I worked there, the shadowy fear was always that the giant chains -- Borders, Barnes & Noble, and the like -- would choke the life out of these little stores. It was at least in part because of the market pressure of these big mega-stores that my own store opted to relocate. But with the news of Borders's bankruptcy (B&N isn't doing all that well either), I can only imagine that stores like mine -- most of which have managed to survive just fine -- are feeling some...schadenfreude isn't exactly right, but I bet they're feeling a little pride.
The received wisdom is that on-line giant Amazon has made the physical mega-stores obsolete. You can obtain much more from Amazon than you can from Borders, and it's easier to do so. Yes, Borders allows you to browse through books, which you can't do the same way on Amazon, and that means you have to have a better idea of what you're looking for on Amazon. But why hasn't the same market force which crushed Borders dampened the fortunes of the used and rare bookstore? After all, you can get as good or better deals on Amazon as you can at any of these stores. The selection of course is infinitely better. As for rare or extremely valuable books, stores like mine might still have an advantage, but not enough people can afford to buy these books to keep the little stores afloat. Is it the inherent physical pleasure of books that explains why the little stores -- much smaller operations than Borders and the like -- continue to survive and even prosper? What is it that accounts for the endurance of the used and rare bookstore?
