The above is the title of a piece in last month's National Law Journal that is worth a read. Written to coincide with the Pope's visit, I myself missed it in the deluge of press coverage. However, especially after Pope Francis's historic address to Congress and the craze with which politicians tried to reap professional benefit from his visit, the article is worth review.
I want to call a bit of notice to Professor Samuel Moyn's very interesting and elegantly executed new book, Christian Human Rights (2015), which traces the specifically 20th century Christian roots of contemporary (secular?) human rights. Moyn begins really in 1937 and devotes special attention to Pope Pius XII's 1942 Christmas message, "The Internal Order of States and People," in which Pius announced both the "dignity of the human person" and that man "should uphold respect for and the practical realization of...fundamental personal rights."
I've just started to dig in to the book, but I wanted to highlight a few passages from the introduction to illustrate some of the accents and grace notes of the book. There is, for example, this line: "The trouble, after all, is not so much that Christianity accounts for nothing, as that it accounts for everything." (6) Part of Moyn's project is remedial with respect both to those "secular historians" who have "nervously bypassed" "the Christian incarnation of human rights, which interferes with their preferred understandings of today's highest principles" and those other scholars, "overwhelmingly Christians themselves," who go about defending the Christian tradition of human rights "in a highly abstract way" and by recourse to "long ago events" stretching back to the very beginnings of Christianity.
There is also this, on the idea of tradition (admittedly, a subject of some interest to me):
No one could plausibly claim--and no one ever has--that the history of human rights is one of wholly discontinuous novelty....But radical departures nonetheless occurred very late in Christian history, even if they were unfailingly represented as consistent with what came before: this is how "the invention of tradition" most frequently works. (5)
The citation is to Hobsbawm's essay (in his edited volume of essays) on The Invention of Tradition (in which Hugh Trevor Roper's typically and enjoyably acid essay on Scottish tartans is one of my very favorites in the 'tradition-as-fraud' genre). Yet I hope it is not too tart of me to wonder whether this phenomenon might just as easily be called "the invention of novelty," novelties being, of course, the stuff on which scholars make their living. Perhaps a little of both?
More seriously, perhaps what these lines in Moyn's insightful book really suggest is that what is really needed is a true and clear-eyed account of the idea of tradition and its importance for law and legal institutions generally, one that is committed neither to lionization nor demonization.
"Should a Self-Driving Car Kill its Passengers in a 'Greater Good' Scenario?", this article asks:
Picture the scene: You’re in a self-driving car and, after turning a corner, find that you are on course for an unavoidable collision with a group of 10 people in the road with walls on either side. Should the car swerve to the side into the wall, likely seriously injuring or killing you, its sole occupant, and saving the group? Or should it make every attempt to stop, knowing full well it will hit the group of people while keeping you safe?
This is a moral and ethical dilemma that a team of researchers have discussed in a new paper published in Arxiv, led by Jean-Francois Bonnefon from the Toulouse School of Economics. They note that some accidents like this are inevitable with the rise in self-driving cars – and what the cars are programmed to do in these situations could play a huge role in public adoption of the technology. . . .
Okay, all you experts on intention out there . . . What's the answer?
Here is Finnis speculating about the drift toward the subjection of legislative power to judicial power:
Why, then, is the drift everywhere towards the subjection of legislative power, directly or indirectly, to judicial power? Why do many judges in many jurisdictions ever more confidently give judgments assuming the roles of constitution makers and legislators? Answers must remain speculative; the causes are various.
One cause is hidden in that word “jurisdiction” I used just then when I meant countries, political and civic communities of households, families, people. Discourse in law schools and courts increasingly locates its participants in a universe of standards of correct thought and decision, and of the incorrect and unacceptable, which are generated and shared among persons who speak as if they were nowhere in particular. And they can carry on this discourse, and make, commend or recommend the corresponding judicial decisions for whole countries and sets of countries with amazingly little pushback by those whom our constitutions still firmly designate as the makers of the law that shapes its people’s future. Why is some pushback in order? Why was and is that historic constitutional distribution of responsibilities sound?
One way of putting a sound answer is this. Pushback, seeking to adaptively restore that constitutional distribution, is timely and fitting because the members of a properly functioning legislature, chosen by persons who (with their families) will be affected, have to look each other in the eye, even while they are deciding, with no pretence that their decision is anything other than what it is: their personal choice of one kind of future, in preference to all others, for themselves, their fellow legislators, and the people they represent and live among. They do not (and cannot) make the claim that bearers of judicial power must at least profess: that this decision of ours about the law merely or essentially conveys (transmits into the present and the future) positions that have already been settled by our law and are found in it by a learned art (Coke’s “artificial reason”) called interpretation, applying commitments made (at least in principle) back in the past. Or interpreting and applying commitments made (it is professed) over there in a haze of “global law”, made how or by whom no-one really can say, but identifiable and professable as rights and standards even by scholars and judges who in another conversation, eye to eye, might well admit their doubt or denial that there is really any moral right or wrong. – their belief that no value judgments are true: all are “subjective”.
That discourse community – or academic, NGO, judicial echo chamber – treats as strangers the legislators in merely local assemblies such as national Parliaments, and the politicians taken to be persons who are unskilled in that learned discourse’s latest tropes and precepts, and who fail to measure themselves against the standards of esteem or disesteem that prevail in a given decade in that community or echo chamber. There is urgent need for legislators who have retained or regained their sense of constitutional place and legitimacy, and who are aware that this whole style and movement of global juridical discourse and judicial reformism is -- like judicial process even at its best – a defective, inferior way for a historically constitutionally minded people to take responsibility for its own future.
There is a lot going on in these few paragraphs, not all of which directly applies in the United States. But still.
Can anyone imagine Justice Kennedy looking Kim Davis in the eye and telling her on the afternoon of June 26 that she must now accept and effectuate the Supreme Court's new understanding of marriage or else quit her job? Surely he could not do so with no pretence that he had not just changed the law.
Does anyone believe that that Justice Kennedy could describe Obergefell as a decision "about the law [that] merely or essentially conveys (transmits into the present and the future) positions that have already been settled by our law and are found in it by a learned art (Coke’s “artificial reason”) called interpretation, applying commitments made (at least in principle) back in the past"?
This goal of this meeting is to facilitate creative discussion about the possibility of developing new, Church-based solutions to poverty in the United States, with a particular emphasis on parish activities of the Catholic Church. We have invited a mixed group of thinkers from academic, business, and non-profit sectors. The unifying thread is that our participants share a passion for the poor, and the firm conviction that strong church communities are vital to social change.
William Galston was part of Bill Clinton's domestic policy team in the mid 1990s when I was coming of age at Middlebury College. Communitarianism was in vogue, and Amitai Etzioni's Spirit of Community had made a strong impression upon me as a young sociology student who hadn't yet discovered political philosophy. I remember experiencing a strong (if youthful) sense of political hope that Galston was involved in Clinton's administration, having learned how closely tied he was to Etzioni and communitarianism. Later would I find Mary Ann Glendon's particular strain of communitarianism--or as I know it now, Catholic social teaching.
I felt a bit of that (more aged) hope on Wednesday, as I read Galston's WSJ op-ed touting marriage as the "cure for poverty." If Galston, now at the Brookings Institute, can state together with colleague Isabel Sawhill and eminent scholar Sara McLanahan that “children raised by two biological parents in a stable marriage do better than children in other family forms across a wide variety of outcomes," we may yet be able to get beyond the impasse created by the last decade of debates over gay marriage. Indeed, Galston did not say much to contradict Rusty Reno or Ross Douthat or even Rick Santorum. Would that thinkers from across the political spectrum could once again speak in one voice on this urgent matter. As all of these writers have noted, governmental policy cannot ultimately restore marriage in America, but policy can be crafted so as not to discourage the same.
The Catholic corner of the Internet has been ablaze for the past day or so about a letter submitted to the New York Times by Catholic theologians upset over Ross Douthat columns about the Synod and, in particular, his use of the word “heresy” in a sub-tweet during a Twitter exchange. Setting aside the letter’s objection to Douthat’s lack of “professional qualifications” (which if enforced would leave the Times op-ed page with only Paul Krugman’s columns on economics and Tom Friedman’s on foreign policy), there is also an important and, to my mind, interesting issue here about the professional norms applicable to signing such statements.
I was once told by a doctoral student of John Rawls’s that Rawls, though an opponent of the Vietnam War, did not sign statements opposing the war because such statements were necessarily too imprecise and usually expressed mere opinion without argument. (Toward the end of his life, Rawls did, alas, sign the so-called “Philosopher’s Brief” in Glucksberg v. Washington, to which David Velleman and Paul Weithman responded powerfully here and here.) I’ve been thinking about the issue of when one should sign statements, amicus briefs, and such since attending an AALS panel last January (organized by my friend and Villanova colleague Michelle Madden Dempsey) on “The Role Morality of the Legal Scholar.” On the panel, Richard Fallon reprised arguments he made a few years ago here raising serious concerns about legal scholars signing amicus briefs, and Amanda Frost responded to Fallon’s arguments along these lines.
For myself, I’ve not been much for signing statements by academics, though I have signed onto amicus briefs in areas of my interest and expertise—including religious freedom and tort and contract law preemption—where I knew the counsel involved and was able to provide substantive feedback in the drafting of the brief. And while I don’t have especially strong or developed views about the role morality of academics when deciding whether to sign this or that statement, it does strike me as an under-explored topic in need of more thoughtful reflection than it usually gets. Notably, what criteria should govern when one does or does not sign a statement? What does one hope to accomplish through such a statement? And how should one navigate between the twin dangers of either self-righteous and ineffectual academic preening in choosing to sign a statement or cowardice in not doing so?
As someone who tries to resist the notion (at least in its cruder formulations) that common law is "made" by judges based on "policy" considerations, I found much to appreciate in John Finnis's wide-ranging lecture "Judicial Power: Past, Present and Future" delivered last week at Gray's Inn Hall. To wit:
To state (like Bacon and countless much longer-serving judges) that the common law is declared rather than made is no mere “fairy-tale” unless the statement is mistakenly asserted or heard as a description of the history of the common law. It is not a description or prediction, fictionalising that history by overlooking the many changes made by the courts, but a statement of judicial responsibility: to identify the rights of the contending parties now by identifying what were, in law, the rights and wrongs, or validity or invalidity, of their actions and transactions when entered upon and done. There are cases when a court, especially one that is hierarchically supreme and thus not bound to follow the rulings of higher courts, can judge it has the duty now to depart from an interpretation or view of the part of our law in dispute between the parties because, though that interpretation or view has been judicially approved and is what legal advisers would now and previously convey to their clients, it is nonetheless out of line with principles, policies and standards acknowledged (now, and when the dispute arose) in comparable parts of our law–so out of line that it ought now to be declared to have been a mistaken view, and set aside in favour of a rule that, though new in relation to the subject-matter and area of law directly in issue between the parties, is nevertheless not a novelty or act of legislation (taking our law as a whole), and can fairly be applied to the parties and dispute before the court.
Perhaps I just need to have a second cup of coffee this morning, but I thought this long essay by Joshua Mitchell of Georgetown on the "Age of Exhaustion” at the American Interest brilliantly captures much about our political and cultural moment—Liberalism (by which Mitchell means a good bit of modern American conservatism) and anti-Liberalism having run their course, we’re tired. Highly recommended with much to think about and contest throughout. A bit:
What Tocqueville understood over and above his contemporaries was that while the transition to democratic social conditions is always tumultuous, once they have settled in, a new sort of problem emerges: Citizens will lose faith in liberty and no longer labor to maintain and defend it. Instead, they will prefer a quiet, purportedly beneficent equality in servitude, a despotism that assures them that they have security and adolescent entertainment: Facebook, Twitter, never-ending video games, and the titillation of ever more mesmerizing gadgets. This delivers them from the specter of anxiety and the burden of freedom. The democratic age ends, neither with robust Liberals striving in a forever imperfect world, nor with defiant anti-Liberals striving to perfect the world, but rather with The Great Exhaustion. Striving, uncertainty, risk, labor, suffering, insult—these become too much for our fragile constitutions to bear. Above all, in the time of The Great Exhaustion, no one wants to “feel uncomfortable” and, so, we conspire to organize the world so that it is without duress or hardship. The 1 percent political and commercial classes are happy to oblige.
