Saturday, June 16, 2012
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.
Friday, June 15, 2012
A collection of centers and institutes at the University of St. Thomas is putting on a series of talks entitled: "Daring to be Different: Creating a vision of Catholic Higher Education in Challenging Times." The goal of the series is to prompt conversation on the same sorts of Catholic identity questions posed by Rob and Greg in recent posts. (The title of the series comes from St. Thomas' history. The following quote is often attributed to our founder, Archbishop John Ireland -- though we can't seem to track down the exact cite: “St. Thomas is not Harvard, or Stanford or the University of Minnesota — all institutions of highest quality. St. Thomas is different. Dear friends, we must dare to be different.” The question we are posing for this series is: "In the context of the challenges facing Catholic higher education today, what should “daring to be different” look like for our community?"
Yesterday's installment in the series was a wonderful talk by John Garvey entitled "The Challenges of Mission-focused Leadership at a Catholic University." In his typically brilliant and elegant way, John shared the vision animating many of the initiatives he is implementing as President of the Catholic University of America. He focused on the interplay of the complementary relationship inherent in a Catholic University's dual responsibility to nurture the intellect and the faith of its students. One of his main points was that the Catholic lay men and women who have taken over the majority of the administrative and faculty positions at Catholic universities from the religious men and women who used to run our schools have to take seriously their responsibility for moral, as well as intellectual, formation of the students entrusted to us. This has to be done not only through the institutional messages a university sends with decisions like choices in honorary degree recipients, but also in structural initiatives that witness positively to the sorts of values we would like to inculcate. Examples of some of the initiatives John is implementing at Catholic University include reinstituting single-sex dorms, encouraging religious men and women associated with the university to live in the dorms, and university-wide promotion of positive values -- such as a month dedicated to awarding medals to members of the community displaying fortitude, and a focus on temperance during March, the month of St. Patrick's Day and Spring Break. In addition to these sorts of institutional messages from administrators, John also argued that the individual lay faculty members have to assume greater responsiblity for modelling lives of faith and sanctity. In an interesting interpretation of the 'Catholic majority' mandate of Ex corde and the US Bishop's norms for implementation of Ex corde, John suggested that this mandate reflects the Pope and Bishops' acknowledgement of the laity's greater competence in running universities, which carries with it the greater responsibility for making personal and institutional decisions that preserve the Catholic identity of the institution.
Since this was a talk by the brilliant John Garvey, my blog post can only capture one of the many important threads running through the talk. I can only hope he publishes it somewhere soon. In the meantime, I offer this link to his recent (June 13) address at the USCCB General Assembly on "Religious Freedom and the Love of God", as well as his lovely recent reflection on the martyrdom of the scribe Eleazar from the 2nd Book of Maccabees in the Chronicle of Higher Education, "A Matter of Faith and Freedom." (And, for just for a smile, a great picture of most of John's 15 grandkids.)
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.
