I came across this elegant reflection by Isaiah Berlin about the nature of intellectual history. From "Russian Intellectual History," an essay collected in The Power of Ideas, 68-69:
What is intellectual history? It is not a clear and self-explanatory concept. Such terms as 'political history', 'economic history' and 'social history', however vague their frontiers, however much they may overlap with one another, are not in this sense obscure. They denote accounts of what certain more or less definable groups of human beings have done and suffered, of the interaction between their members, of the deeds and destinies of those individuals who have been influential in altering the lives of their fellows in certain specific ways, of the interplay between them and external nature or other groups of human beings, of the development of their institutions -- legislative, judicial, administrative, religious, economic, artistic -- and so on . . . . But what is intellectual history? A history of ideas? What ideas and conceived by whom? . . . . What is the subject of such speculations and disagreements? If not the specific ideas that belong to specific disciplines, then what? General ideas, we shall be told. What are these? This is much more difficult to answer . . . .
By 'general ideas' we refer in effect to beliefs, attitudes and mental and emotional habits, some of which are vague and undefined, others of which have become crystallised into religious, legal, or political systems, moral doctrines, social outlooks, psychological dispositions and so forth. One of the qualities common to such systems and their constituent elements is that, unlike a good many scientific and common-sense propositions, it does not seem possible to test their validity or truth by means of precisely definable, agreed criteria, or even to show them to be acceptable or unacceptable by means of widely accepted methods. The most that can be said of them is that they are to be found in that intermediate realm in which we expect to find opinions, general intellectual and moral principles, scales of value and value judgments, mental dispositions and individual social attitudes -- everything that is loosely collected under such descriptions as 'intellectual background', 'climate of opinion', 'social mores', and 'general outlook[.]' . . . . It is this ill-defined but rich realm and its vicissitudes that histories of ideas or 'intellectual histories' supposedly describe, analyse, and explain.
With this stylish, though of necessity imprecise, definition in mind, whom do you think are the leading intellectual historians of law -- not just legal historians, but historians of legal ideas (they may be the same, but they may not be)?
Monday, May 30, 2011
This essay, by Stephen White, is relevant to, well, many of the posts and conversations here at MOJ over the years. Let's put aside whether we agree, or not, with the essay's policy-related conclusions, and think instead about this paragraph, which strikes me as insightful and important:
Unlike political ideologies of the Right and Left, personalist and communitarian principles are not fundamentally opposed, but complementary. Libertarians and socialists may adhere to incompatible ideologies, but for Catholics, the common good is never “in tension with” (let alone opposed to) the dignity and proper autonomy of the individual person. Subsidiarity is not “balanced against” solidarity. The erosion of solidarity always endangers subsidiarity. In the absence of subsidiarity, solidarity is smothered by dependence upon the state. The dignity of the individual can never be sacrificed in the name of collective utility, and no true individual good can be legitimately won at the expense of the common good.
The lovely and talented Nicole Stelle Garnett explains (and praises), in the Yale Law Journal's "Pocket Part", the Court's recent decision in Winn, in which the Justices rejected (on "standing" grounds) a (frivolous) Establishment Clause challenge to Arizona's very important and successful tuition-tax-credit program.
This is a very interesting paper by Professor O. Carter Snead with the above title. The paper provides a superb overview of developments in the science of memory alteration, offers a "humanistic" account of the nature of memory (with fitting citations to Proust), and then comments in interesting and insightful ways on the relationship between various traditional functions of punishment and the centrality of memory in their operation.
What Professor Snead says with respect to retribution is especially interesting. Retribution, in any of its multiple constituent manifestations, depends on a "true and fit" memory on the part of both offenders and jury (at 1246 and following). Memory modifications (for offender or juror), says Professor Snead, may make the punishment less deserved either because less true to the event and the relevant background or less "fit" to those circumstances. I found the concept of "fittingness" difficult, but very important. Professor Snead argues that memory modification might disturb the fittingness of a punishment, but I suppose one would have to know something about the defendant and the jurors (and the community) in order to decide. If, for example, we were dealing with an affectively stunted individual, perhaps we would want to calibrate memory according to some sort of community scale of fittingness. Likewise if we were dealing with an individual whose memory was exceptionally keen -- beyond the general sense of fittingness. Again, if we are interested in a general notion of fittingness along the lines that Professor Snead suggests, perhaps calibration would be in order in such a case as well?
These are just little thoughts. Take a look at Professor Snead's terrific piece on a deeply interesting subject.
Saturday, May 28, 2011
Bernard Williams, John Rawls, and Philippa Foot did a lot over the last half of the twentieth century to make utilitarianism a shady philosophical neighborhood to hang out in, but they’re all dead now. Peter Singer has a review in the TLS (not available online) of Derek Parfit’s new and long-anticipated book (in two volumes and 1400+ pages), On What Matters, which Singer writes is “the most significant work in ethics since Sidgwick’s masterpiece [The Methods of Ethics] was published in 1873.” (Really? More important than On the Genealogy of Morals or A Theory of Justice?) Parfit, so far as I can tell, holds an idiosyncratic version of utilitarianism that is a convergence of modern moral theories ("climbing the same mountain on different sides"). I’ve also been having an exchange over at the Catholic Moral Theology blog with Charlie Camosy about the conference at Oxford on Singer and Christian ethics that Rob Vischer posted about earlier. Suffice to say I think Charlie and I have a disagreement about whether and to what extent there are deep and ineliminable contradictions between consequentialist moral theories (including utilitarianism) and Christian ethics, but to quote Foot: “no decision is more important for practical ethics than that by which we come to embrace or reject utilitarianism.”
This is a provocative short piece by Professor Bruce Ledewitz commenting on a genre of recurring controversy this time of year (this year, it was Louisiana) and on the legacy of Lee v. Weisman. In his work, Professor Ledewitz has been grappling with the issue of how secular and religious frameworks might be combined to create something new.
Also, and as it has been a Steve Smith fest here of late (the Oklahoma conference sounds wonderful), I'd like to get on board and point folks to a related article of Steve's involving the school prayer decisions of the 1960s.
