The blogosphere is abuzz with discussion of Steve Smith's short essay, Jurisprudence: Beyond Extinction, which I posted here earlier. Jeff Lipshaw defends the essay here, Larry Solum questions it here, and Brian Leiter expresses his, um, not so positive views here. One of Leiter's arguments should be of special interest to MoJ readers. Smith wrote that:
[U]nder modern conventions, academic discussion is supposed to be carried on in secular terms, meaning, for the most part, the terms of scientific naturalism and of common sense everyday experience. In attempting to explain som ehappening or phenomenon, it is perfectly permissible for modern scholars to refer to religion--or to people's beliefs in God. By contrast, actual appeals to God, or to anything that looks metaphysically suspicious or exotic, are out of bounds. As a result of this drastic narrowing of the range of admissible argument or explanation, claims or positions that would once have been framed forthrightly in theological terms now must be translated into more secular terms--or else abandoned.
Leiter comments:
I take it the "modern convention" of discourse in the post-Enlightenment world is that claims should answer to reasons and evidence, and that dogmatic appeals to authority--whether God's or Aristotle's--will not suffice to establish the truth of some proposition. There is no doctrine of "scientific naturalism" accepted by contemporary participants in jurisprudential debate (Raz has even famously criticized Hart for the naturalism in the background of The Concept of Law), though certainly not everything is thought to count as a reason or as pertinent evidence. Contemporary "academic conventions" aren't just picking on Smith's God or Blackstone's; Osama bin Laden's God is out too. So, too, is my pet theory that positivism is true because I say so. Also the view that nothing is law if it does not comport with the hidden lyrics on the Beatles' Abbey Road album. Also it is not evidence that natural law theory is false that it gives my Uncle Bert gas. And so on.
I'm not quite sure how to describe what makes these varoius boundaries of rational disputation hang together; and one must recognize, of course, that these boundaries are themselves always in dispute. But it is really weird at the dawn of the 21st century, several hundred years after the scientific revolution and the Enlightenment, to find a professional scholar seriously suggesting that it constitutes a "drastic narrowing" of argument to not take seriously dogmatic invocations of the deity in intellectual inquiry. What exactly would "argument and explanation" in Smith's world look like? What would constitute a response to his imagined academic who stands up at a conference and invokes Blackstone's idea about God's law?
Of course, we know what intellectual discourse looked like when dogmatic invocations of the deity were thought to constitute an argument. And there is a reason those cultures and eras were not ones notable for their great number of intellectual insights and advances.
Thursday, September 6, 2007
Steven D. Smith has posted his new paper, Jurisprudence: Beyond Extinction?, in which he observes that the classic jurisprudential debate between natural lawyers and positivists:
can come to seem quite pointless. After all, we can all agree - can't we? - that governments exist, that they issue directives and enact rules, that there are methods or criteria by which officials determine what the directives and rules are. And we can likewise agree that some of these directives and rules are just and good, while others are inefficient, unfair, or downright oppressive. So what is the disagreement about? Is it just that some people - the positivists - want to call the wicked rules "law" (albeit "bad law") while the natural lawyers prefer to withhold that honorific designation? Have generations of jurisprudence really been driven by this dispute over labeling?
Given the pointlessness of this debate, Smith then notes that folks who do jurisprudence have drifted off to other disputes that are not "peculiarly within the province of jurisprudence."
Brian Tamanaha comments on the essay:
Smith is right that jurisprudes don't have any special qualifications to opine on issues of morality or sociology or any particular legal subject, but their general perspective on law and their corpus of knowledge can nevertheless be informatively applied to all sorts of particular problems. Indeed, the relevance of jurisprudence is recognized by many scholars of separate fields, who make an effort to familiarize themselves with jurisprudence precisely for this reason.
Over at First Things, Peter Leithart has a fascinating post wondering whether we need to "re-Paganize" the West as part of our evangelization efforts. Here's an excerpt:
It’s a truism among African theologians that the Church has grown most rapidly where traditional African religions are strongest. According to Ghanaian theologian Kwame Bediako, this is no accident but highlights the “special relationship” that African “primal religions” have with Christianity. Like primal African religion, Christianity displays a strong sense of human finitude and sin, believes in a spiritual world that interacts with the human world, teaches the reality of life after death, and cultivates the sacramental sense that physical objects are carriers of spiritual power. Christianity catches on there because it gives names to the realities they already know and experience.
This special relationship is not unique to twenty-first-century Africa. Many African theologians invoke the patristic notion of a praeparatio evangelii, the belief that pre-Christian religion was designed to prepare the way for the gospel, to justify their approach to African religions. Athens might have been the birthplace of philosophy, but the Athenian citizens opened civic assemblies with sacrifices and Athenian women celebrated the Thesmophoria in honor of Demeter.
Sophisticated as Roman politics and military were, they cleansed the burned Capitolium in A.D. 69 with a suovetaurilia sacrifice to Mars of a pig, ram, and bull; and Trajan’s column shows the emperor offering the same sacrifice to purify the Roman army. Tacitus records that the Germanic tribes outside the empire sacrificed animals and humans, met their gods in sacred groves, and predicted the future with twigs and bird auguries. The Letter to the Hebrews, with its talk of priests and sacrifice, of blood and miasma and purgation, spoke to Greeks and Germans as much as to Jews.
If Christianity is most successful among traditional religions, perhaps the Church has to reinvent primal religion before the West can be restored to Christ. Of course I don’t mean that churches should send their tithes to Wicca International or initiate pulpit exchanges with the Covenant of Unitarian Universalist Pagans. Re-paganizing the West means acting on the premise that, for all our pretense of sophistication, the West has never entirely escaped the impulses and habits of primitive culture, or that, by escaping Christianity, we are reverting to it. Re-paganizing the West means working out the implications of the French sociologist Bruno Latour’s assertion: We have never been modern.
Tuesday, September 4, 2007
Nelson Tebbe's new article, Excluding Religion, may be of interest to MoJ readers. Here's the abstract:
This Article considers a pressing issue in the constitutional law of religious freedom: whether government may single out religious actors and entities for exclusion from its support programs. Although the problem of selective exclusion is generating intense interest in lower courts and in informal discussions among scholars, so far the academic literature has not kept pace. Excluding Religion argues that generally government ought to be able to target religious actors and entities for denial of support, although the Article carefully circumscribes that power by delineating a set of principled limits. It concludes by developing a theoretical framework for considering the broader question of whether and when a liberal democracy may influence the decisions of private citizens concerning matters of conscience.
