Saturday, October 25, 2014
John Gray has a long, superb essay on the subject (h/t L. Joseph), with scathingly acute criticisms of the modern sense in which evil is eminently conquerable through (of all things) politics, or really doesn’t exist, or must somehow be the result of somebody’s mistake, or could be cleared up as a simple matter confusion. Particularly keen are Gray’s comments about the way in which the old religious traditions offer certain insights on the matter, insights that are today largely either ignored or disbelieved. Read it all, including this:
It’s not that [most western leaders] are obsessed with evil. Rather, they don’t really believe in evil as an enduring reality in human life. If their feverish rhetoric means anything, it is that evil can be vanquished. In believing this, those who govern us at the present time reject a central insight of western religion, which is found also in Greek tragic drama and the work of the Roman historians: destructive human conflict is rooted in flaws within human beings themselves. In this old-fashioned understanding, evil is a propensity to destructive and self-destructive behaviour that is humanly universal. The restraints of morality exist to curb this innate human frailty; but morality is a fragile artifice that regularly breaks down. Dealing with evil requires an acceptance that it never goes away.
No view of things could be more alien at the present time. Whatever their position on the political spectrum, almost all of those who govern us hold to some version of the melioristic liberalism that is the west’s default creed, which teaches that human civilisation is advancing – however falteringly – to a point at which the worst forms of human destructiveness can be left behind. According to this view, evil, if any such thing exists, is not an inbuilt human flaw, but a product of defective social institutions, which can over time be permanently improved.
....
It’s in the Middle East, however, that the prevailing liberal worldview has proved most consistently misguided. At bottom, it may be western leaders’ inability to think outside this melioristic creed that accounts for their failure to learn from experience. After more than a decade of intensive bombing, backed up by massive ground force, the Taliban continue to control much of Afghanistan and appear to be regaining ground as the American-led mission is run down. Libya – through which a beaming David Cameron processed in triumph only three years ago, after the use of western air power to help topple Gaddafi – is now an anarchic hell-hole that no western leader could safely visit. One might think such experiences would be enough to deter governments from further exercises in regime change. But our leaders cannot admit the narrow limits of their power. They cannot accept that by removing one kind of evil they may succeed only in bringing about another – anarchy instead of tyranny, Islamist popular theocracy instead of secular dictatorship. They need a narrative of continuing advance if they are to preserve their sense of being able to act meaningfully in the world, so they are driven again and again to re-enact their past failures.
Many view these western interventions as no more than exercises in geopolitics. But a type of moral infantilism is no less important in explaining the persisting folly of western governments. Though it is clear that Isis cannot be permanently weakened as long as the war against Assad continues, this fact is ignored – and not only because a western-brokered peace deal that left Assad in power would be opposed by the Gulf states that have sided with jihadist forces in Syria. More fundamentally, any such deal would mean giving legitimacy to a regime that western governments have condemned as more evil than any conceivable alternative. In Syria, the actual alternatives are the survival in some form of Assad’s secular despotism, a radical Islamist regime or continuing war and anarchy. In the liberal political culture that prevails in the west, a public choice among these options is impossible.
There are some who think the very idea of evil is an obsolete relic of religion. For most secular thinkers, what has been defined as evil in the past is the expression of social ills that can in principle be remedied. But these same thinkers very often invoke evil forces to account for humankind’s failure to advance. The secularisation of the modern moral vocabulary that many believed was under way has not occurred: public discourse about good and evil continues to be rooted in religion. Yet the idea of evil that is invoked is not one that features in the central religious traditions of the west. The belief that evil can be finally overcome has more in common with the dualistic heresies of ancient and medieval times than it does with any western religious orthodoxy.
There follows an interesting discussion of Manicheanism and the views of Augustine, and then this:
In its official forms, secular liberalism rejects the idea of evil. Many liberals would like to see the idea of evil replaced by a discourse of harm: we should talk instead about how people do damage to each other and themselves. But this view poses a problem of evil remarkably similar to that which has troubled Christian believers. If every human being is born a liberal – as these latter-day disciples of Pelagius appear to believe – why have so many, seemingly of their own free will, given their lives to regimes and movements that are essentially repressive, cruel and violent? Why do human beings knowingly harm others and themselves? Unable to account for these facts, liberals have resorted to a language of dark and evil forces much like that of dualistic religions.
The efforts of believers to explain why God permits abominable suffering and injustice have produced nothing that is convincing; but at least believers have admitted that the ways of the Deity are mysterious. Even though he ended up accepting the divine will, the questions that Job put to God were never answered. Despite all his efforts to find a solution, Augustine confessed that human reason was not equal to the task. In contrast, when secular liberals try to account for evil in rational terms, the result is a more primitive version of Manichean myth. When humankind proves resistant to improvement, it is because forces of darkness – wicked priests, demagogic politicians, predatory corporations and the like – are working to thwart the universal struggle for freedom and enlightenment. There is a lesson here. Sooner or later anyone who believes in innate human goodness is bound to reinvent the idea of evil in a cruder form. Aiming to exorcise evil from the modern mind, secular liberals have ended up constructing another version of demonology, in which anything that stands out against what is believed to be the rational course of human development is anathematised.
Friday, October 24, 2014
That is the assessment of Michael Stokes Paulsen, writing in the November 2014 issue of First Things -- 2014 Supreme Court Roundup: An Explanation of the Court's Affirmations of Our Right Not to Go Along. (HT: How Appealing)
A few morsels below, but one must read the whole thing not only to assess Paulsen's analysis but also to appreciate his inimitable prose:
The biggest cases decided by the Supreme Court in the term that ended this past July concerned, almost without exception, First Amendment liberties of expression, association, and free exercise of religion. And that is appropriate. Those of us whose views are not in accord with the current trend of national politics and policies have little left if deprived of the rights to dispute, to dissent, to resist, to refrain, to refuse, to contest. These freedoms are the last line of defense.
***
It is a parlous state of affairs when we must depend on the Supreme Court as the bulwark of our most vital natural rights and civil liberties—freedom of religion, freedom of expression and group association, freedom of conscience, the rights to live, to work, and to raise a family. The Court has not always, or even very often, done well on this score. With distressing frequency, it has performed poorly, shortchanging rights plainly written in the Constitution and inventing illegitimate ones nowhere to be found in the text. The Court tends to bow to political pressure and blow with prevailing cultural and popular winds.
Measured by the low standards of the desperate, the Supreme Court’s 2013–14 term was on the whole a spectacularly good one. The term was, if anything, arelief. In the cases that really mattered, the Court reached the right results and gave support to the rights of dissenters, albeit with more equivocation and labor than one might have preferred. The opinions typically were not sweeping, beautiful landmarks. But at least they were not the cataclysms that we have so often come to dread, and see.
***
A measure of the success of the past year’s term is to contemplate what things would have looked like if the Court had gotten these cases wrong. Religious persons, groups, and businesses could be coerced to support and pay for abortion drugs by administrative fiat. Men and women who wish to counsel pregnant women against abortion could be prevented from doing so on public property near clinics. Citizens could be forbidden from financially supporting as many political candidates as they chose. Politicians could sue, or threaten to sue, citizens to punish them for expressing critical views, and effectively shut down opposition. Workers could be forced by law to support political causes with which they disagree. The Court held the line against such outcomes.
Earlier this week, I began to notice #waitingforSutton on Twitter. And one morning, when the Sixth Circuit posted links to its opinion a little later than expected, I was surprised to find myself rather eager to read whatever opinions might be coming in the Sixth Circuit's same-sex marriage cases. This is due in no small part to Judge Sutton's presence on the panel.
Many who attended or heard the audio of the August 6 oral arguments believe that Judge Sutton's vote one way or the other will be decisive. That assessment seems accurate, as is the belief that the Sixth Circuit is less likely to conclude that the Fourteenth Amendment to the Constitution of the United States requires states to redefine marriage to include same-sex couples than the Fourth, Seventh, and Tenth Circuits have proven to be.
There are therefore a couple of obvious reasons why people are #waitingforSutton. A Sixth Circuit decision upholding state laws would create a circuit split and almost certain cert grant. And the decision could come any day now. (Oral arguments were August 6, and according to the Sixth Circuit Appellate Blog, "the Sixth Circuit's average time between argument and decision is 2-3 months ....").
These are not the only reasons, though, and for me at least, not the most important. Judge Sutton is an excellent judge and an excellent writer. As I've said before, Judge Sutton's opinions are "conversational and accessible to an intelligent lay reader." Whatever the outcome Judge Sutton's opinion ultimately supports, it is unlikely to convey the "disdain for lawyers' arguments or contempt for legislators and voters" that comes through in Judge Posner's opinion in Baskins v. Bogan.
I do not expect Judge Sutton to vote to hold the states' marriage laws unconstitutional. But if he were to do so, I would expect his opinion explaining that vote to be more persuasive than those that have been released thus far.
If, as is more likely, Judge Sutton votes to uphold the states' definition of marriage to require one man and one woman, and if the Supreme Court later holds to the contrary, my hope is that his opinion will be one that I can assign to serve the same functions as when I assign Judge Friendly's pre-Roe draft abortion opinion. A sound circuit court opinion before a bad Supreme Court decision can show a path not traveled in a different way than a powerful dissent.
----------
For those seeking insight into Judge Sutton's thinking about constitutional law and judging more generally, here are some extrajudicial writings:
Courts as Change Agents: Do We Want More — or Less? (Harvard Law Review, Vol. 127, pp. 1419-1445, 2014) (HT: Originalism Blog)
Courts, Rights, and New Technology: Judging in an Ever-Changing World (NYU Journal of Law & Liberty, Vol. 8, pp. 260-278, 2014) (HT: Originalism Blog)
Barnette, Frankfurter, and Judicial Review (Marquette Lawyer, Fall 2012, pp. 13-23)
What Does--and Does Not--Ail State Constitutional Law, (Kansas Law Review, Vol. 59, pp. 687-714, 2011)
A Review of Richard A. Posner, How Judges Think (Michigan Law Review, Vol. 108 pp. 859-76, 2010)
Thursday, October 23, 2014
Pope Francis has been making the news (again!), this time for his comments at a private audience with members of the International Association of Penal Law. His comments—which reveal a sophisticated understanding of many aspects of criminal justice—covered a wide range of issues, including overcriminalization of the disenfranchised (and underpunishment of official corruption), abuses of pretrial detention, inhumane prison conditions, and the role of the media in driving public demand for “vengeance.”
In the midst of a treasure trove of richness, the comment that has attracted the most media attention so far is Pope Francis’s comparison between the death penalty and sentences of life imprisonment. As reported by Vatican Radio, in his comments today the Pope invited
“[a]ll Christians and people of goodwill . . . to fight not only for the abolition of the death penalty . . . in all of its forms, but also for the improvement of prison conditions in the respect of the human dignity of those who have been deprived of freedom. I link this to the death sentence. . . A life sentence is a death sentence which is concealed.”
Yes! That!
In recent years, the death penalty has been the subject of widespread attack from the Catholic community in the United States, on the ground that it is unnecessary for the protection of the public and undermines the “dignity of the human person.” Writings on the subject are nuanced and voluminous but, simply put, the critique is that by “offer[ing] the tragic illusion that we can defend life by taking life,” the death penalty “diminishes all of us.” I don’t disagree one bit.
Capital lawyers often argue, and courts sometimes agree, that “death is different” from any other punishment, and that capital sentences should therefore be subject to greater scrutiny and held to higher Constitutional standards than sentences of natural death behind bars—that is, sentences that impose life, or de facto life, sentences on convicted individuals. Because capital sentences are so immediately and tangibly final, they deserve a scrutiny that terms of years don’t warrant. Or so the argument goes.
But I have often found myself troubled when death penalty abolitionists argue not only that capital punishment is wrong, but that the morally-appropriate alternative is a sentence of life without the possibility of parole. While state-sanctioned execution is the harshest penalty available under the law, sentences of natural death in prison have a brutality of their own, imposing the certainty of death behind prison walls, often preceded by decades of isolation. Love, children, home, family, nature, work, sunshine—these basic natural goods, which define the experience of human life for the non-imprisoned, are restricted or eliminated entirely by the fact of imprisonment.
Certainly, loss of liberty is required and deserved in many cases involving serious crime, but courts often hand out sentences of imprisonment in super-size quantities that leave no room for redemption. As a result, young people grow old behind bars, their loved ones move on or die, and loneliness defines their existence. Almost 50,000 people are serving sentences of life without parole in the United States. That number does not include those serving de facto life sentences by virtue of lengthy terms of years, or the 110,000 people serving parole-eligible life sentences (many of whom will never be released under current restrictive parole policies). Despite the scale of sentences to life imprisonment, Catholic conversations about punishment in the U.S. have largely ignored those sentenced to die behind bars who are not on death row.
Today’s brief comments by Pope Francis don’t begin to resolve hard questions about how long sentences should last, or what kinds of crimes deserve what kinds of punishment. (The Pope observed in his comments today that life sentences were recently repealed in the Vatican Criminal Code; however, the maximum penalty under the Code stands at a not-insubstantial 35 years.) What the Pope did do today was remind us that our criminal justice system has discarded and forgotten many people in ways that do not comport with their inherent dignity and worth—and remind us that we are called to do something about it.
