Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Saturday, January 22, 2011

"Retributivism: Essays on Theory and Policy"

By Marc DeGirolami

Here's the Amazon page for a volume on retribution (edited by the generous Mark White) in criminal law that can be enjoyed by the voracious consumer of criminal theory and the curious dilettante alike.  And here's the Oxford page -- contributions by important names in the theory of punishment (R.A. Duff, Jeffrie Murphy, Thom Brooks, Gerald Gaus, Dan Markel, and many other terrific people).  And I've got a chapter in here too on retribution and the choice of evils!

Release date not until April, but you may want to pre-order, as nothing says Happy Easter like a volume on retribution.  [Ok, maybe not the tightest fit, but, really, who doesn't get a warm feeling inside at the thought of retribution?]

The Moral "Meaning" of Literature: Or Of Oil and Water

By Marc DeGirolami

The New York Times has a review of this unusual book by philosophers Hubert Dreyfus and Sean Dorrance Kelly, in which the argument seems to be made (I have not read the book entirely, only in fragments) that reading some of the great works of Western literature can help us "find meaning" in a post-monotheistic age.

Naturally, and as the review points up, that will mean that it will have little to say for those who haven't made this important advancement.  And the review is also useful in describing what is a truly strange reading of Homer.  The Greeks were "less reflective" than we are and so, without thinking deeply, they celebrated the "excellence" of war in exactly the same manner as they celebrated a really good tragedy.  Odysseus "is a prototype of modern ambivalence" because just like modern man, apparently, he cheats on his wife but wants the home life too.  If this is really the authors' interpretation of the Odyssey, one which the reviewer calls "incandescent," then I wonder how Dante, who gets tossed in there somewhere too, gets treated.  Perhaps an analogy can be made to some sort of contemporary redemption story.  Dante is just like Michael Downey, Jr.  Dante is truly the forerunner of Ben Roethlisberger (from the review: the authors "repeatedly turn to mass sports events, which they see as providing a primary sense of community and meaning in contemporary America"). 

But the real problem with this sort of book may be neither the secular presumptions nor the crudely tendentious readings, but something much, much worse -- the idea that literature can be read as a unitary, one-thread story, and that it can be used to achieve or "recapture" some sort of mystical pomo ethic -- the call of the gods experienced as a rushing "whoosh" (the authors think that's what we feel when President Obama speaks) -- in our "nihilistic" world.  Mon Dieu!  "Moral" readings of literature are nothing new, and some philosophers are well known for the suggestion that literature can improve one's moral hygiene.  I find those views deeply unpersuasive, but this seems to be a further step in the evolution of this view of literature.  It's the view that literature has a unitary moral message to impart -- that the "meaning of it all" can be discerned from this reduction -- and that it can be used strategically to fill whatever void "secular" man needs filling.

As I said, I haven't read the book in its entirety, so perhaps these remarks are too strong.  But, and setting aside the important and interesting field of aesthetics (philosophers, is it still going strong?), perhaps philosophy and literature would do better by mindfully keeping their mutual distance. 

ADDENDUM: Since there was a bit of talk in the review about the authors' view that reading literature can be a way to overcome contemporary "alienation," this quote from a piece by Mark Lilla some time back is worth reproducing: "[T]he aim of any liberal education worthy of the name is to transport students out of the world they live in, making them less certain about what is valuable in life. It does not seek to overcome alienation, it tries to induce it." 

Thursday, January 20, 2011

Unfortunate and Ominous

By Marc DeGirolami

Professor George a few days ago rightly praised the Egyptian Muslims who protected Christians in Egypt from acts of terrible persecution.  But this story reports the unfortunate decision of the highest Islamic authority in Egypt, al-Azhar, to "freeze all dialogue with the Roman Catholic Church over what it called Pope Benedict's repeated insults toward Islam."

I tend to be sanguine about conversation as an effective social lubricant to reach a modus vivendi (someone once teased me for prescribing "the talking cure" in one of my old articles).  But even I wonder what talking can do if it's deemed insulting, as the story puts it, to "condemn[] attacks on churches that killed dozens of people in Egypt, Iraq and Nigeria," or to urge non-violent forms of resistance as "effective measures to protect religious minorities."

Wednesday, January 19, 2011

"The Moral Equivalent of War"

By Marc DeGirolami

On the drive to work this morning, I heard that Sargent Shriver, the founder of the Peace Corps, had died.  The commentator, a biographer of the Kennedys, noted that the Peace Corps had its intellectual origins in an old essay by William James, "The Moral Equivalent of War."  I know James's work in The Varieties of Religious Experience a little, as well as some of his essays in the collection that includes "The Will to Believe," but I had never read that essay and so spent some time with it this morning.  Like all of James's writing, it is penetrating and powerful, whether one agrees or not (I find some claims persuasive, others beguiling).  But the essay also left me wondering whether those who embrace the Peace Corps today would approve it. 

James, who describes himself in the piece as a "pacifist," considers how to channel what has historically been the terrible conceptual and emotional appeal of war into "moral" pursuits.  After the jump, a longish bit from the essay, where James considers the strengths and weaknesses of the "militarists'" claims and makes a creative argument for the non-martial (I think this may be more precise, though certainly less rhetorically powerful, than "moral") analogue to war:

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Tuesday, January 18, 2011

Poetry and Prayer

By Marc DeGirolami

Yesterday, I attended the last day of a very interesting conference, New York Encounter, in New York City organized by "Communion and Liberation" -- a Catholic organization founded in 1954 by the late Msgr. Luigi Giussani and devoted in part to cultural education of Catholics.  The panel I attended was devoted to the poetry of Giacomo Leopardi, perhaps the most important Italian poet of the 19th century and (with Petrarch) one of its two greatest lyric poets ever.  Leopardi's work had, I learned, been a major source of inspiration for Fr. Giussani.

The panel was composed of Jonathan Galassi, the President and Publisher of Farrar, Straus & Giroux and translator of a very recent and wonderful edition of Leopardi's poetry; a very interesting Italian poet named Davide Rondoni; and law professor Joseph Weiler.

One might wonder why Professor Weiler was on the program -- and even he asked the question in his presentation.  But after his talk, there was little doubt as to why.  In the first place, Weiler is extremely broadly read; he was quite knowledgeable about Leopardi's life and writings.  Second, Weiler has great synthetic abilities (perhaps one of the areas in which law professors have a special comparative advantage).  He offered a quite close, careful, and illuminating comparison of various sections of the book of Genesis with a poem by Leopardi called, Hymn to the Patriarchs: Or of the Beginnings of the Human Race. 

But beyond that, and in keeping with the synthetic nature of his talk, Weiler reflected on how one's experience of prayer is quite like one's experience of poetry.  The idea was that for either of these pursuits, to enjoy and benefit from them fully, one needs to cultivate a habit of mind in which they become repeated and altogether ordinary, or regular, activities.  If one only comes to pray or to read poetry occasionally -- in the exceptional or extraordinary situations of life -- then one will not be able to enjoy and be transformed by the full richness of the experience.

In some ways Leopardi was an unexpected choice for a conference such as this; he was an atheist who rebelled against what he perceived was the repressive and bourgeois Italian Catholicism of his youth, and his decidedly pessimistic Romatic orientation is not quite a perfect fit.  And yet, consider what is perhaps his best known poem, "The Infinite" (after the jump):

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Saturday, January 15, 2011

First Prize for the Loopiest Establishment Clause Theory (of the week)

By Marc DeGirolami

It goes to the plaintiffs in Murray v. Geithner (h/t to the spectacular Religion Clause blog), whose claim was that the government bailout of AIG violated the Establishment Clause because AIG offers and apparently "has advertised itself as the market leader" in loans which are compliant with certain dictates of Islamic law (You may be wondering what would qualify a loan as Sharia-compliant.  The court gives a list at pp. 5-6 of the order -- interestingly, one of the conditions strikes me as highly laudable: "a certain percentage of any net surplus, if any, derived from the collection of premiums is paid to charitable organizations").

The plaintiffs' theory is that by bailing out AIG, the government violated the Establishment Clause, and by agreement of the parties, the standard the court applied was the Lemon test.  The failure of the purpose prong is so patent as, in my view, to rise to the level of frivolousness.  Could any reasonable human think that the government purchased AIG preferred stock in order to promote or favor Islam?  On the effects prong (not my favorite, I admit), there was evidence that the Sharia-compliant loans constituted 0.022% of AIG's revenue when the government intervened.  Not a shred of evidence that this government "aid" to religion, such as it was, results in "religious indoctrination attributable to the government."  No evidence at all that the "aid" defines its recipients by reference to religion.  And if this is "entanglement" then the standard is practically void of meaning.

Why loopiest theory of only the week?  Actually, I was thinking about how a fully subjectivized endorsement test might apply in this kind of case; perhaps using that theory, the plaintiffs would have had a stronger leg to stand on (what EC plaintiff wouldn't?).  But no matter how anyone might feel about the bailout of AIG, this seems to me a truly odd way to complain about it.

The fact that this dog of a case made it to summary judgment and was not dismissed on the pleadings is indicative of the absurdity of some of the Establishment tests in circulation (the "pervasively sectarian" presumptions that the court discusses seem unwarranted to me, but whatever a "pervasively sectarian" institution is, AIG ain't it).  Undeterred, plaintiffs have filed an appeal to the Sixth Circuit. 

Ave atque vale.

Thursday, January 13, 2011

An Argument One Does Not Often See

By Marc DeGirolami

...can be found in this new paper by Paula Abrams, in which the endorsement test's reasonable observer standard is criticized on the grounds that it is insufficiently attentive to the Establishment Clause value of "inclusiveness."  I've certainly seen critiques of the endorsement test, but only once in a while on the grounds that the reasonable observer standard needs really to be broadened to account for purely subjective experiences because it is in the nature of religious belief and non-belief that it "alters an individual's conception of the world," and so there is no single reasonable perspective on the subject of "inclusion."  The bottom line for Professor Abrams is that any religious display by the government ought to be presumptively unconstitutional (1555) and that we ought to return to the purpose and effect test inquiry of Lemon, but somehow subjectivized as to the latter in order to account for the impossibility of attaining any sort of standard of reason at all, given the subject matter.

For what it's worth, my guess is that there is a fairly good chance that the endorsement test is on its way out, and that the Court will pick a case soon enough to reject it, though perhaps not for Professor Abrams's reasons (though these things are difficult to predict).  But I'm not certain what I think about some of Professor Abrams' views about the reasons for the reasonable observer test's emergence.  For example, she says, at 1554, that the endorsement test gained ascendance just as the court was shifting from a separationist model to "[t]he prevailing theory," one which "emphasizes government accommodation of religion."  Lee v. Weisman is cited as evidence for the Court's new theory, and then the author says that "[t]he endorsement test embodies this metamorphosis."  A few things strike me as not quite right about this set of statements: (1) the government lost in Lee; (2) the endorsement test was not used in Justice Kennedy's majority opinion in Lee; (3) Justice O'Connor, the mother of endorsement and committed endorsement-ite to the end, joined the majority in Lee; (4) if anything, the endorsement test, as conceived and applied, has been deemed (I think?) more restrictive than many competing approaches, including that used by Justice Kennedy in Lee; and (5) perhaps most crucially, I'm not sure I can agree that the Court's present "theory" is one which "emphasizes government accommodation of religion," whether in the Free Exercise or Establishment contexts. 

For those interested in these issues, and with the time to read the paper, I'd be curious if you think I am misreading the claims.

Wednesday, January 12, 2011

A.W.B. Simpson's "Legal Iconoclasts and Legal Ideals"

By Marc DeGirolami

I recently heard of the passing of A.W.B. Simpson.  I never had the chance to meet him, to my regret, as he was a writer whom I admired -- one could sense in him deep learning, but always lightly expressed, and a powerful common law sensibility.

Perhaps readers will know some of his great books.  One of the best known (rightly so) is Cannibalism and the Common Law, a wonderful historical tour of the famous Dudley & Stephens case (and useful supplementary reading for criminal law teachers who like to talk about the choice of evils!).

But one of my favorite pieces of his is a little essay delivered as the 1989 Marx Lecture at the University of Cincinnati and published in its law review, with the title, "Legal Iconoclasts and Legal Ideals."  Unfortunately, the piece is only available to people with access to Westlaw, Hein, etc., but after the jump, I'll summarize what I enjoy about it.

Continue reading

Monday, January 10, 2011

Not Catholic Legal Theory Department

By Marc DeGirolami

So there I was on an airplane, organizing my things on an extremely packed flight right before takeoff, when what should pass down the aisle but a woman walking (or maybe being led by) a small canine -- one of those creatures more realistically classified as rodentiform.  I looked around for some sort of explanation, but only saw other gaping maws.

I came to find out later on the flight that this is an animal which serves to calm the owner's anxiety -- or, as I've since learned, an "Emotional Support Animal."  Apparently if one obtains a doctor's note, one can bring a loose animal onto an airplane packed to the gills with people because one is thereby emotionally assisted in managing the flying experience.  Knowledgeable readers, do I have this right?

If I do, it leaves me wondering how much anxiety is sufficient to get you your plane pet, and of what sort.  How bad does your anxiety need to be to compel other people to tolerate being touched or perhaps even rubbed by a foreign, hairy beast, with no possibility of moving?  And what if the animal defecates or vomits, and one has an anxiety about being trapped in a small space with nothing to breathe but re-processed, dung-scented air?  Are there limits to the sort of animal that one can bring that somehow are more restrictive than Mill's harm principle?  If you find Bengal tigers emotionally assuaging, probably that wouldn't "fly,"  but what about my frisky and oh-so-friendly yellow lab? 

And how unstable is unstable enough to obtain this privilege?  I sometimes have anxieties on planes -- not at all about the flying or the bumps, but about the other people, their personalities, and their proximity to me.  I take it this would not be good enough. 

Wednesday, January 5, 2011

Marriage and Dependence

By Marc DeGirolami

And is it not the bitterer to think

That, disengage our hands and thou wilt sink

Although thy love was love in every deed?

Last night I had one more little thought about Judge Reinhardt's explanation for his decision not to recuse himself (opinion here).  On four occasions in the decision, Judge Reinhardt states forcefully that his wife is an "independent woman" or an "independent person" or that she has "independent views." 

Since it seemed to me that the judge was attempting not only to describe the actual nature of his marriage but also to explain what a reasonable or ordinary contemporary (and therefore, not "outmoded") observer would think about the relationship of a married couple, something he had to do for purposes of the recusal standard, I began to wonder about the emphasis on the idea of the independence of spouses.

It is certainly true that in many ways spouses are independent.  They will have different occupations and careers, different interests, different tastes, different friends, different views, and so on.  Much of their lives will be independent.  Sometimes one hears that to be married is to "sacrifice" one's independence -- no more hogging the closet, no more going out drinking with your buddies whenever you want to, or lying on the couch all day just because you feel like it. 

But I've always thought that dependence is a reason to want to be married, an important boon of marriage, not a sacrifice.  In at least some happy marriages, to be dependent is to be supported, to be cared for, to enjoy the goods of intimate trust and loyalty.  I enjoy greatly my dependency on my wife, because in addition to making possible the attainment of certain goods to which I otherwise wouldn't have access, it is an intrinsic solace and a comfort to rely deeply on another person. 

To be sure, as feminists have pointed out to great effect, dependence (and especially marital dependence) can go horribly wrong -- it can be abused by one or both of the parties, as it was by the husband in Browning's lovely poem ("Any Wife To Any Husband").  In criminal law, one sees that marital dependence can breed all sorts of horrors -- wives who cannot leave their abusive husbands, mothers who cannot report abusive fathers. 

But for all that, dependence seems to me something which couples who are contemplating marriage might relish and look forward to with excitement.  Dependence is the natural state of many thriving marriages.  It is so powerful a bond that it somehow persists even when a marriage is in disrepair -- as Browning says, dependence becomes "bitter" after betrayal, just as it was sweet before the fall.   

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