ReligiousLeftLaw.com

Happy (Radical) Mother's Day!

At Huffington Post’s “Religion” page: Diana Butler Bass on “The Radical History of Mother’s Day.” (An introduction to Anna Reeves Jarvis— September 30, 1832-May 9, 1905). See too Ruth Rosen at Slate: “Soap to Ploughshares.” 

Why is Religion a First Amendment Stepchild?

I do not know, but the law seems to treat religion as less important. If a law is not aimed at speech, but hits communicative conduct (law outlaws destruction of a draft card which might or might not be done in the presence of another), the law can be constitutionally applied only if it furthers a substantial state interest by means no greater than is essential to the furtherance of that interest. But if a statute prohibiting particular conduct (eg., ingesting peyote) whether religious or not religious, hits religion (e.g., a Native American religious ceremony involving the ingestion of peyote), no First Amendment test applies unless another constitutional right is also burdened or the government is singling religion out for special treatment.

But suppose a First Amendment test is warranted in a statute directed at the content of a communication or in a statute primarily aimed at a form of religious conduct. In the speech context the courts require the government to show that the statute or regulation is necessary to further a compelling state interest. This is called “strict scrutiny.” On the other hand, if a statute is directed against religious conduct, the courts apply a less demanding standard to the government action even though the courts will label their standard as “strict scrutiny.”

The courts have not explained the basis for this different treatment. Perhaps they think the justification is obvious. But I think you have to get up very early in the morning to explain the different treatment of speech and religion – particularly when these rules have been fashioned by judges who are members of religious associations. Although I am writing this post very early in the morning, I have to say I am baffled.

Motley readings worthy of our attention…

The following articles, and one book (in no particular order), I think well warrant our attention:

• Diane Marie Amann, “The President & the Prison Camp” (cross-posted at IntLawGrrls)
• Dan Joyner, “Syria Update, and the Evolution of a Right of Counterproliferation Oriented Preemptive Self-Defense”
• Charles S. Maier, “The Return of Political Economy”
• Neil deMause, “Contingency Plan: Outsourcing Education”
• Christopher McCrudden, “In Pursuit of Human Dignity: An Introduction to Current Debates”
• Adam Hanieh, “The Oslo Illusion”
• Allegra Pacheco, “Expanding the Legal Paradigm for Palestine: An International Law Conference at Birzeit University”  
• Wajahat Ali, “Against the Brahmins: An Interview with Pankaj Mishra”
• Richard M. Locke, “Can Global Brands Create Just Supply Chains?”
• From the editors of Himāl Southasian, a series of articles under the rubric, “Farms, Feasts, Famines”
• Melvyn Dubosky, “Does Organized Labor Have a Future?”
• Bill Fletcher, Jr., “Now What? Labor Unions and the Inevitability of Class Struggle”
• Michael Hirsch, “So Why Don’t We Have Better Unions?”
• Spencer J. Pack, “How the Right Got Adam Smith Wrong on the Eve of Environmental (and hence Economic) Catastrophe”
• Lisa Herzog, “Markets” (from the Stanford Encyclopedia of Philosophy)
• M. Lynx Qualey, “5 Arabic Books to Read ‘Before You Die’”
• Forthcoming: Philip Mirowski, Never Let a Serious Crisis Go to Waste: How Neoliberalism Survived the Financial Meltdown (London: Verso, 2013)

Cambridge's Polynices

[N]one shall entomb him or mourn but leave him unwept, unsepulchered, a welcome object for the birds, when they spy him, to feast on at will.

Many an educated reader - and many an educated lawyer in particular - will have encountered the line I've just quoted, as well as the name I have quoted in the title to this post.  These are words spoken by Antigone, apropos an edict prohibiting entombment of her brother, Polynices, in the Attic tragedy that bears her name.  Polynices has made war on his own polis, Thebes, and for this reason Creon, the ruler of Thebes, has decreed he is not to be accorded the rites that both sacred and customary law prescribe.  The 'luckless corpse of Polynices' is to be left to be eaten by carrion-birds.  A resultant clash of contrary obligations - that to obey ruler-posited law on the one hand, that to obey divinely and custom-posited law on the other hand - is of course what renders Antigone's predicament 'tragic' in the classical Greek ('damned if you do, damned if you don't') sense rather than in the watered-down, contemporary sense per which 'tragic' is roughly synonymous with 'unfortunate.'

I'd like to suggest here that a cognate tragedy to Antigone's is now in the course of enactment in Cambridge, Massachusetts, where the family of Tamerlan Tsarnaev, the accused Boston Marathon bomber killed in the course of his apprehension by authorities, is finding it impossible to locate a cemetary at which Mr. Tsarnaev can be properly interred. 

To be sure, there are obviously critical differences between the Tsarnaevs' case and that of Antigone.  One is the irony that in the present instance it is private parties who are refusing proper burial while ultimately a state institution will likely be that which accords it.  Another, related distinction is that the tragic clash of principle in the present instance is not between divine or customary law and royal decree, as in Antigone, but between the former on the one hand and an apparently deeply felt imperative  to express and even 'live out' disgust and disapproval on the other. 

Nevertheless, I think we shall ultimately agree that the similarities between the Tsarnaevs' plight and Antigone's are more salient than are the distinctions.  That is primarily for two reasons.  The first is that in both cases, the clash of principles at work can indeed be understood as a clash between admittedly compelling principles.  The second is that, again in both cases, it seems nevertheless clear which principle must ultimately prevail.

As for the first of these, I trust it is obvious that both 'sides' of Antigone's predicament are compelling.  Divine and customary law in the polis are binding requirements par excellence, while municipal law is for its part a prerequisite to that 'order' which underwrites 'ordered liberty.'  In contemporary Cambridge and human society more generally, by much the same token, custom, a decent respect for (not to mention cherishing of) our fellow citizens and their faiths, and, I believe, what many if not most of us still thankfully consider 'divine' and 'natural' law remain as compelling here and now as they were in the Hellenic world of Sophocles's day.  At the same time, the irreducibly reverential character of any proper funeral rite, combined with the unspeakable monstrosity of what was done in Boston this past month, certainly can make it seem, on the surface at least, as though permitting proper burial would constitute some falling short of full repudiation of the deed now attributed to the dead. 

Ultimately, however, I think the mentioned surface appearance illusory, and this takes me to the second salient similarity that I think we shall find between the cases of Antigone and the Tsarnaev family.  In the case of Antigone, it seems clear to me at any rate that the divine and customary law of Thebes must ultimately prevail in the event of conflict with a monarch's arbitrary and vindictive decree.  And much the same, I believe, can be said even of many conceivable cases in which even bona fide democratically decided legislation offends certain more 'fundamental' precepts, even if in most of these cases the calls will be tougher.  In the case of the Tsarnaev family, by the same token, resolution seems to me similarly straightforward - indeed even moreso.  For, unlike the compellingness of civic decree, that of symbolic repudiation is not predicated upon any determinate necessity - at least not determinate in the sense of 'independent of articulated interpretation.'  What is more, I think that the interpretations of what we are doing that we both can and ought articulate in connection with doing right by the Tsarnaev family is far more plausible than that which today's refusers of proper rites appear to assume.

What do I mean here?  I mean essentially two things, one of them primarily in connection with the previous sentence but one, the other in connection with the previous sentence itself. 

So first, in alluding to 'determinacy,' I mean to say that there is no message of approval - no symbolic condoning of bombing - inherent in according our sisters, brothers, and fellow citizens in the Tsarnaev family the space in which to grieve, pray for, and properly bury their kinsman.  That is particularly so insofar as we, and in particular the proprietors or administrators of what ever cemetary ultimately proves to be the final resting place, make plain that so doing is the reason for ending the current refusal.  The meanings of actions are critically, even if not always solely, what we take, decide, and articulate them to be; and I suggest that respect for and empathy with the Tsarnaev family both is and should be the dominant meaning that will attach to ending the present refusal to let them bury their kinsman.  (And lest you find 'empathy' too strong a word here, please view any clip now available on the web of Tamerlan Tsarnaev's uncle's expressions of distress over not being able to find a resting place for his nephew; it is heartbreaking beyond measure.)   

Second, I think another meaning is worth noting in connection with the case of Tamerlan Tsarnaev - a meaning that I think at least as much there to be seen and appreciated as to be deliberately attributed:  In according the proper funereal respects to Mr. Tsarnaev, I think, we attribute full significance to the deed of which he stands accused, in a way we might not if we simply 'make him disappear.'  Not allowing proper burial - leaving him out for the carrion-birds, so to speak - seems to me to suggest a certain deteriorability or dissipatability in connection even with the dead's alleged deed, as if the wrong will dissolve into nothingness with the body.  It suggests that there is no meaning borne by this man's body or person, hence that no meaning inheres in his actions. 

To continue to hold fast to Tamerlan Tsarnaev's sacred humanity and his soul's persistence, by contrast, in recognizing and embracing his family's sacred right and obligation to do with his body what their (not to mention our) religious laws require, is to accord the permanence and significance of his alleged deed its proper weight.  It is to recognize that this deed is still 'out there,' as it were, still weighing on the moral and spiritual economy of our lives.  And it is also, it bears noting in passing at this site in particular, to recognize the continuing opportunity of the dead to repent, and the hope that they will, in eternity.

 

Cross-posted at Mirror of Justice

[NB: I hope it will be clear in the foregoing that I recognize 'proper rites' to be faith- and culture-specific.  As Patrick could no doubt remind us, Polynices's being left to 'carrion-birds' would be no disgrace within certain Tibetan or Native American traditions in which 'feeding the sky' is the prescribed mode of disposition of the dead, nor would one's being cremated constitute any disgrace in Hindu or Old Norse societies that prescribed the same.  In Tamerlan Tsarnaev's faith tradition, on the other hand, proper burial is the prescribed rite, and to deny this to the Tsarnaev family here and now is to wrong them most grievously.] 

The Corporatization of Higher Education: A Basic Reading List

After reading a skeptical query at another law blog about the putative “corporatization of higher education,” I thought to assemble this select bibliography on the topic. Incidentally, it turns out the law professor who posed this question responded in turn to a reply by proclaiming with remarkable confidence that “corporatization has not come to law schools in any meaningful fashion.” Is that true? [Correction: It may not have been a law professor, although perhaps someone who has published law-related articles and now works for a private corporation.]

• Aronowitz, Stanley. The Knowledge Factory: Dismantling the Corporate University and Creating True Higher Learning. Boston, MA: Beacon Press, 2001.
• Aronowitz, Stanley. C. Wright Mills and the Making of Political Intellectuals. New York: Columbia University Press, 2012.
• Bok, Derek. Universities in the Marketplace: The Commercialization of Higher Education. Princeton, NJ: Princeton University Press, 2003.
• Chomsky, Noam, et al. The Cold War and the University: Toward an Intellectual History of the Postwar Years. New York: The New Press, 1997.
• Chomsky, Noam. “American Freedom and the Corporatization of Universities” (partial transcription of lecture), April 6, 2011: http://www.chomsky.info/talks/20110406.htm
• Donoghue, Frank. The Last Professor: The Corporate University and the Fate of the Humanities. New York: Fordham University Press, 2008.
• Ginsberg, Benjamin. The Fall of the Faculty: The Rise of the All-Administrative University and Why It Matters. New York: Oxford University Press, 2011.
• Jacoby, Russell. The Last Intellectuals: American Culture in the Age of Academe. New York: Basic Books, 1987.
• Kenney, Martin. Bio-Technology: The University-Industrial Complex. New Haven, CT: Yale University Press, 1988.
• McGettigan, Andrew. The Great University Gamble: Money, Markets and the Future of Higher Education. London: Pluto Press, 2013.
• Mills, Nicolaus. “The Corporatization of Higher Education,” Dissent (Fall 2012): Available: http://www.dissentmagazine.org/article/the-corporatization-of-higher-education
• Mirowski, Philip. Science-Mart: Privatizing American Science. Cambridge, MA: Harvard University Press, 2011.
• Nelson, Cary and Stephen Watt. Academic Keywords: A Devil’s Dictionary for Higher Education. New York: Routledge, 1999.
• Newfield, Christopher. Unmaking the Public University: The Forty-Year Assault on the Middle Class. Cambridge, MA: Harvard University Press, 2008.
• Nussbaum, Martha C. Cultivating Humanity: A Classical Defense of Reform in Liberal Education. Cambridge, MA: Harvard University Press, 1997.
• Nussbaum, Martha C. Not for Profit: Why Democracy Needs the Humanities. Princeton, NJ: Princeton University Press, 2010.
• Readings, Bill. The University in Ruins. Cambridge, MA: Harvard University Press, 1996.
• Ryan, Alan. Liberal Anxieties and Liberal Education. New York: Hill and Wang, 1998.
• Schrecker, Ellen. The Lost Soul of Higher Education: Corporatization, the Assault on Academic Freedom, and the End of the American University. New York: The New Press, 2010.
• Scott, Debra Leigh. “How the American University was Killed, in Five Easy Steps.” The Homeless Adjunct blog (August 12, 2012).
• Simpson, Christopher, ed. Universities and Empire: Money and Politics in the Social Sciences during the Cold War. New York: The New Press, 1998.
• Steck, Henry. “Corporatization of the University: Seeking Conceptual Clarity,” Annals of the American Academy of Political and Social Science, Vol. 585 (Jan. 2003): 66-83.
• Tuchman, Gaye. Wannabe U: Inside the Corporate University. Chicago, IL: University of Chicago Press, 2009.
• Washburn, Jennifer. University, Inc.: The Corporate Corruption of American Higher Education. New York: Basic Books, 2005.

Thanks to a colleague at my college, Paul McDowell (Anthropology), for a couple of additional titles.

Happy May Day! (that is to say, the real ‘Labor Day’)

“The struggle for the 8-hour day reached a significant moment on May 1, 1886 as the Knights of Labor and numerous other labor organizations called for a national work stoppage on this day to demand that the 8-hour day become the law of the land. Thousands of workplaces shutdown across the country and capital trembled. Linked to the issue of shorter hours was the question of child labor as depicted in this 1908 Lewis Hine photo of a few of the doffers and sweepers in the Mollahan Mills in Newberry, South Carolina. In the U.S. serious legislation governing the hours of work and child labor was a long, long time coming as workers fought and died well into the 1930s before an upsurge in organization pressured the government into making a handful of modest reforms.”—From the Facebook page of the Bread & Roses Centennial (1912-2012) Committee.

Prior May Day posts (including an historical introduction to the holiday in the first of the two links) are here and here.

Several years ago ago at Slate, Robert Pinsky discussed two poems by William Blake that serve to fill out the meaning of this holiday, both titled “The Chimney Sweeper,” from Songs of Innocence (1789) and Songs of Experience (1794) respectively.

Neoliberal Capitalism in Bangladesh: The Violence of "Free Markets"

At least 3,000 people are believed to have been in the building on Rana Plaza at the time the building collapsed. More than 380 bodies had been recovered by Monday morning. Hundreds are still missing. And with every day that passes, the chances of finding survivors grows dimmer.

The deadly incident in Savar has already been called the worst industrial accident in the country’s history. It serves as a reminder that nothing has changed when it comes to the inhumane conditions under which clothes are made in Bangladesh for European and American textile companies and clothing chains. And the same can be said about the culture of corruption that is rampant in Bangladesh, the abundance of illegally procured construction permits and the lax attitude factory owners take toward safety standards. — Hasnain Kazim, Nils Klawitter and Wieland Wagner, from their piece for Der Spiegel (April 29, 2013), available here.

The disaster refocused attention on the dangers facing workers in the booming Bangladeshi garment industry, ramping up calls for stricter regulation. Western brands whose labels were found in the wreckage faced new pressure to sign on to a safety agreement.

“Brands can no longer justify any further delay.... The lack of action demonstrated by brands amounts to criminal negligence,” Ineke Zeldenrust of the Clean Clothes Campaign said in a statement Monday.—From the Los Angeles Times (April 30, 2013)

These tragedies could not have come at a worse time for major retailers that purchase garments from these factories. For months the International Labor Rights Forum and other labor rights groups have encouraged garment retailers to sign a binding agreement that would create a system of rigorous inspections, transparency and oversight. Thus far, they have had limited success, with only the parent company of Tommy Hilfiger and Calvin Klein brands and one German retailer signing on.

The agreement, the Bangladesh Fire and Building Safety Agreement, would establish a nine-member Oversight Committee, with four members appointed by Bangladesh and international labor groups, four members appointed by business representatives chosen by companies sourcing from Bangladesh, and one member mutually chosen by the other eight. Corporations that sign on to the MOU would help fund the costs of improving fire and safety standards in the factories where they source their supplies. [….]

A key provision in the Agreement is binding arbitration. Specifically, the Agreement requires the Oversight Committee to develop a plan for the implementation and administration of the Bangladesh fire and safety program that includes “[a] process for binding and legally enforceable arbitration of disputes between parties to this MOU with respect to this MOU and the program….”

In other words, labor unions and participating corporations would sign a binding agreement to improve the working conditions of Bangladeshi garment workers, and any corporation that failed to comply with its funding or other obligations under the MOU could be the subject to international arbitration enforceable under the New York Convention in that corporation’s home country. [….]—Roger Alford at Opinio Juris (April 26, 2013)

“The Terror of Capitalism,” Vijay Prashad, CounterPunch (April 26-28, 2013)

“On Wednesday, April 24, a day after Bangladeshi authorities asked the owners to evacuate their garment factory that employed almost three thousand workers, the building collapsed. The building, Rana Plaza, located in the Dhaka suburb of Savar, produced garments for the commodity chain that stretches from the cotton fields of South Asia through Bangladesh’s machines and workers to the retail houses in the Atlantic world. Famous name brands were stitched here, as are clothes that hang on the satanic shelves of Wal-Mart. Rescue workers were able to save two thousand people as of this writing, with confirmation that over three hundred are dead. The numbers for the latter are fated to rise. It is well worth mentioning that the death toll in the Triangle Shirtwaist Factory fire in New York City of 1911 was one hundred and forty six. The death toll here is already twice that. This ‘accident’ comes five months (November 24, 2012) after the Tazreen garment factory fire that killed at least one hundred and twelve workers.

The list of ‘accidents’ is long and painful. In April 2005, a garment factory in Savar collapsed, killing seventy-five workers. In February 2006, another factory collapsed in Dhaka, killing eighteen. In June 2010, a building collapsed in Dhaka, killing twenty-five. These are the ‘factories’ of twenty-first century globalization – poorly built shelters for a production process geared toward long working days, third rate machines, and workers whose own lives are submitted to the imperatives of just-in-time production. Writing about the factory regime in England during the nineteenth century, Karl Marx noted, ‘But in its blind unrestrainable passion, its wear-wolf hunger for surplus labour, capital oversteps not only the moral, but even the merely physical maximum bounds of the working-day. It usurps the time for growth, development and healthy maintenance of the body. It steals the time required for the consumption of fresh air and sunlight…. All that concerns it is simply and solely the maximum of labour-power that can be rendered fluent in a working-day. It attains this end by shortening the extent of the labourer’s life, as a greedy farmer snatches increased produce from the soil by reducing it of its fertility’ (Capital, Chapter 10).

These Bangladesh factories are a part of the landscape of globalization that is mimicked in the factories along the US-Mexico border, in Haiti, in Sri Lanka, and in other places that opened their doors to the garment industry’s savvy use of the new manufacturing and trade order of the 1990s. Subdued countries that had neither the patriotic will to fight for their citizens nor any concern for the long-term debilitation of their social order rushed to welcome garment production. The big garment producers no longer wanted to invest in factories – they turned to sub-contractors, offering them very narrow margins for profit and thereby forcing them to run their factories like prison-houses of labour. The sub-contracting regime allowed these firms to deny any culpability for what was done by the actual owners of these small factories, allowing them to enjoy the benefits of the cheap products without having their consciences stained with the sweat and blood of the workers. It also allowed the consumers in the Atlantic world to buy vast amount of commodities, often with debt-financed consumption, without concern for the methods of production. An occasionally outburst of liberal sentiment turned against this or that company, but there was no overall appreciation of the way the Wal-Mart type of commodity chain made normal the sorts of business practices that occasioned this or that campaign. [….]

In the Atlantic world, meanwhile, self-absorption over the wars on terror and on the downturn in the economy prevent any genuine introspection over the mode of life that relies upon debt-fueled consumerism at the expense of workers in Dhaka. Those who died in the Rana building are victims not only of the malfeasance of the sub-contractors, but also of twenty-first century globalisation.”

Vijay Prashad’s latest book is The Poorer Nations: A Possible History of the Global South (London: Verso, 2012).

Addendum: See too this timely Forum discussion at Boston Review: Can Global Brands Create Just Supply Chains? The lead article addressing the question of corporate responsibility with regard to industrial workers involved in the geography of global manufacturing is by Richard M. Locke.

MARRIAGE EQUALITY: How I Changed My Mind

From 2003 to early 2009, I wrote a series of historically-grounded papers that reached the common conclusion that marriage equality represented a radical departure from the western tradition of marriage and so, for that reason, should be rejected as a matter of public policy.  I have now changed my mind regarding this conclusion.  While there is no question that marriage equality represents a dramatic departure from what has gone before, I can now find support within our western tradition for expanding the definition of marriage to embrace loving, committed same-sex unions.

Let me begin with my professional background:  I am a lawyer and an historian.  These two sides of my brain co-exist in what I like to think is, for the most part anyways, a creative tension.  The lawyer side of my brain considers public policy issues in the urgency of the present.  The historian's training, however, summons me always to look at the deep picture, to appreciate what has come before, and it was this innate conservativism that long governed my instincts on marriage equality.  In my historical writings on the subject, I made essentially three arguments:  (1)  In the few instances in which same-sex marriage was debated on the historical record, it was rejected; (2)  a principal reason for this rejection, furthermore, was because marriage was about procreation, and only procreative relationships should therefore be recognized as marriage; and (3)  public policy should remain within these tightly-drawn boundaries, because any departure would be likely to result in arbitrary line-drawing.

The historical record on same-sex marriage is a surprisingly deep one.  So far as I can tell, it was discussed for the first time in the first and second centuries of the common era when the Emperor Nero engaged in a same-sex marriage with a galley slave during a lavish festival stage-managed by his praetorian prefect, Tigellinus.  The ancient authors were unremittingly harsh on Nero for this action.  Tacitus turned his ferocious irony on Nero, blaming him for the Great Fire at Rome, while Juvenal simply mocked him and those who later tried to emulate him.

Twelve centuries later, the canon lawyer Hostiensis raised the subject of same-sex marriage once again.  Hostiensis is one of those figures, well known to specialists but who has simply vanished from the popular historical understanding.  A scholar with a virtuoso's talent at raising and answering challenging questions, Hostiensis asked whether it was ever possible for a man to marry a man.  He answered in the negative and did so in order to read into his legal definition of marriage the developing theology of unnatural acts found in the scholastic writers.

His analysis would be repeated and expanded by other writers, also well-known to specialists but forgotten by nearly everyone else.  Antoninus of Florence mooted this question in the fifteenth century and Johannes Brunellus in the sixteenth.  Echoes of this mode of thought can still be found in the magisterial documents of the Catholic Church.

And if this line of thought represented one element of my own perspective, the procreative dimension of marriage represented the other.  Secular and religious sources, it seemed, converged on this point of agreement.  The Emperor Augustus decreed that marriage had to have a procreative dimension and where procreative intent was excluded from marriage, the Roman state itself might impose penalties.

The theologian St. Augustine, four centuries later, had much more to say on this point.  Marriage, he insisted, had to be procreative.  Where two parties took steps affirmatively to frustrate the natural fruitfulness of marriage their union could not be called marriage.  It was invalid and amounted to a sham.

Early American lawyers and judges were inheritors of this tradition.  Indeed, nineteenth-century marriage law had a profound Augustinian structure to it.  St. Augustine, after all, had argued that not only did marriage exist essentially for procreative purposes, but also that it was necessarily exclusive and permanent.  That is, those who strayed from their marital obligations should be punished for adultery or for fornication, while simultaneously divorce should be granted, if at all, only for a few narrowly defined causes.

These three essential marital properties had been bedrock teaching from the time of St. Augustine, through the medieval canonists, up to the eccesiastical courts of early modern England.  Early American jurists borrowed many of their matrimonial categories directly from the English ecclesiastics and almost without conscious reflection made this framework the superstructure around which they constructed their own marital theories.

American marriage law was dominated by this vision of marriage until the 1950s and 1960s, when the law began to shift fundamentally.  Adultery and fornication, while still seen as moral wrongs, ceased to be prosecuted as crimes.  No-fault divorce meanwhile eroded the law's commitment to marital permanency by greatly expanding opportunities to depart from marital commitment.  Finally, the Supreme Court's right of privacy cases, beginning with Griswold v. Connecticut, severed the connection between marriage and procreation.

This is a story I repeated in several iterations in my writing between 2003 and 2009.  The record seemed compelling.  It seemed self-evident that the conservative side of this debate had the mandate of history if not of heaven.

But I now recognize that I had merely told the story of how we got where we are and contented myself with the conclusion that that story, standing alone, provided sufficient guidance for future decision-making.  But I appreciate now something that I did not appreciate seven and eight years ago, when I commenced my writing on this topic.  I needed a more expansive historical vision in order to speak normatively.  The story I told was a static account.  I needed to identify the dynamic element within the history of marriage.

And that dynamic element is love -- enduring commitment to the personhood and welfare of another human being.  Love has been a central feature of the marital ideal for nearly as long as people have written about marriage.  Babylonian poetry recites the story of Dumuzi and Inanna, two adolescents, highly anthromorphized deities, who flirtatiously courted and wed.  Teasingly, joyously, with all the warmth and playfulness of youth, they ease themselves into a loving marriage.

In the Hebrew Scripture, we find the Song of Songs.  I have always doubted the imputation of this book to King Solomon.  It is an erotic celebration of love, told from the woman's perspective.  Christians have always felt the need to spiritualize this book, to make its explicit sexuality an allegory, but this I think is a mistake.  It is a book about love, passionate marital love, and it is found in the Bible.  And then there is St. Paul who in his letter to the Ephesians advises Christian spouses to love each other sacrificially, as Christ so loved the Church.

St. Augustine belongs to this tradition also.  When he wrote his treatise On the Good Of Marriage, he commenced with the words:  "Every individual belongs to the human race, and by virtue of his humanity, is made a social being.  In addition, the person possesses a strong aptitude for friendship."  Yes, procreation was a defining element of marriage for St. Augustine, but so also was companionship.  In the end, it is because we are social beings who know how to love that marriage becomes an appropriate means of procreation.  Love comes first, for St. Augustine, then procreation.

Great modern secular writers, too, have explored the importance of love and marriage.  One of the earliest, and among the most profound, was Mary Wollstonecraft, in her many works of fiction.  She could mourn the misery that comes when marriage is severed from the longings of the heart.  But she celebrated warm-hearted love, too, in whatever strange corner of human experience it might be found.  The women writers of the nineteenth century knew this too.  Elizabeth Cady Stanton argued for consensual divorce not to provide an easy escape valve from marriage but as a way of ensuring that love and marriage might always and everywhere remain perfectly matched.

And it is safe to say that since 1960s, American society has witnessed a sea change in the area of marital theory.  Where once marital theory rested securely on Augustinian premises, the rise of artificial birth control and the right of privacy cases have shifted the foundations.  Marriage today, as a matter of public understanding, can only be grounded on love and commitment, not procreation.  As a Catholic, I still understand marriage, in my faith tradition, to unite the procreative and affective ideals.  As an American citizen, however, I also know that I belong to a diverse and creative world where a new set of public norms is even now coming into being.

And these new norms are love-based.  I feared for a long time the confusion that might result from marriage grounded solely on affection.  How do we determine what to honor with the term "marriage" and what human relationships should be characterized merely as "friendship?"  The former, esteemed by the State, carries with it legal rights and duties.  The latter, privately respected, confers no public recognition.  But how do we demarcate one from the other?

I can see now that that boundary line must be in the strength of commitment shared by two loving hearts.  I have personally witnessed successful same-sex relationships.  The response of the gay community to the AIDs crisis, particularly in the 1980s, stands as further vivid testimony to the strength and power of sacrificial, self-giving love.  For AIDs brought forth truly heroic demonstrations of love and new conceptions of family.  Susan Sontag captures these related phenomena brilliantly in her short story, The Way We Live Now.  We find there the many faces of love, as a concentric circle of friends gathers, hovers, retreats, and congregates once again, all of them trying to comfort their dying friend.

Marriage equality is a new departure in history, but that does not mean we lack all guidance from the past.  History, in the form of the story of love itself and the vast treasure-house of human experience that relates to it, can serve as our steady guide.

Who Cares about the Poor

April’s Harper’s Index reports that only 42% of American women believe they have a personal responsibility to help the poor. The report is even more disappointing for American men. Only 27% believe they have a personal responsibility to help the poor. The source for these statistics is Environics Research.

I am not sure what to make of this. In any given year approximately three quarters of American families give money to charities though it is not clear what percentage of these families give money to the poor. We do know that 75 million American give no money to charities of any kind.

In any event, most politicians obviously think the public does not care much about the poor. The poor are denigrated by Republicans and largely ignored by Democrats. I have no confidence that political leaders will cultivate concern about the poor. And such leadership certainly will not come from those who preach the prosperity gospel.

If the public does not care about the poor, you have to wonder what religious leaders have been doing or why they have been ineffective. I am an ex-Catholic, but I am praying for the success of Pope Francis.

 

Discovering Milner Ball: A Theologian of Hope

As I continue my work on a writing project focused on William Stringfellow, I have been greatly encouraged by a growing band of companions on the way. Recently Frank Alexander, law professor at Emory University and director of their Center for the Study of Law and Religion, sent me a wonderful packet of material related to Stringfellow. Among these was a remarkable essay and tribute to the work of Milner S. Ball, a theologian and for many years a professor of law at the University of Georgia. I have just finished an exhilarating essay of Ball's, entitled "Don't Die Don Quixote: A Response and Alternative to Tushnet, Bobbitt, and the Revised Texas Version of Constitutional Law." I confess that it both fascinates and dumbfounds me--Ball's thought is, for this theologian at least, an alternate universe: close to the ground of contemporary constitutional law theory, full of references to Karl Barth, Bonhoeffer, Augustine, and William Shakespeare, and advocating for a utopian form of scholarship wedded to a preferential option for the poor. Why have we in theological circles never heard of him? (well, I think I know some of the reasons why, which are the same reasons why Stringfellow is not more widely known in academia as well). 

 

In any case, perhaps some Religious Left Law readers will smile knowingly at my belated discovery of Ball. If so, I will be delighted to hear their own impressions of this most amazing theological-legal voice. For now, I simply want to share a passage from another essay of Ball's that I found cited in a tribute to Ball by Erica Hashimoto, now also teaching at U. of Georgia (Hashimoto's piece, Reflections on Hope, is a quite lovely tribute to Ball, her teacher).  From the essay "The City of Unger", Ball writes, in words I find all too relevant to today's struggles, 

My generation is tempted to think that the irony of innocence savaged and destroyed is a description of necessary reality...We are lured by the belief that serious commitment to a just world means that sooner or later our hearts will be broken.... Other less classic temptations exist. One is the upbeat mythology ...do deals and abandon the realities of mass suffering for bold, unapologetic acquisitiveness. Another temptation is to give up and do nothing.... If we refuse these temptations, it is because we catch glimpses of another, more authentic possibility. The facts yield no ground for optimism, and yet we snatch from them intimations of more and better. The facts yield no ground for optimism, and yet we snatch from them intimations of more and better. We are led to suspect the penultimacy of current events and to anticipate the ultimate. Our suspicions draw nourishment from several sources, including surprises, exceptions, and experiments that spring up, against the odds...

In Milner Ball's poetic stagings of the interrelationship of law, hope, and theology we can see just such "glimpes' and "intimations" of something more and better. Like Stringfellow, Ball was deeply suspicious of those who claimed themselves to be "religious," so to call this something more and better a specifically religious claim would miss his point. Stringfellow said that to be holy was not to be better, or more religious than others, but to be nothing more than utterly human. Like Kierkegaard's knight of faith, the holy person will not look much different from the beggar on the street. Ball, in his reading of Toni Morrison's Beloved, says this, following closely Baby Suggs' non-religious mysticism of love: 

"In the religion it thus adopts, the Word, although incorrespondent, becomes nonetheless accessible-in words and in hearts speaking beyond the need for words. The incorrespondent Word, the wholly other, is contextually, particularly human. Her religion-religion adopted by the Word-is determinative of who she is as a human and of how she is human. It cannot occupy an isolated sphere either metaphysical or private. It gives her humanity and life instead of rescuing her from either."

This is a vision quite close, I think,  to what William Connolly calls, following Foucault, a "political spirituality," or what John D. Caputo has called a "religion without religion." Mysticism of the left, it is roomy enough for a circus tent full of misfits. May its tribe increase!

 

 

 

Locating the Dignity of the Dead

“Even those who think that death is a continuation, and not an ending, can benefit from contemplating the implications of annihilation. That annihilation would be bad for them explains why it is important to live forever: it is the only way to avoid the evil of annihilation. If, on the other hand, annihilation would not be bad for them, the question arises as to why they value the prospect of immortality.”—Steven Luper [1]

“The human species is only partly natural. It is the only species about which that can be said.”—George Kateb [2]

“Philosophers tend to think that precision is always important, but they have known since Aristotle that that may not always be wise. Sometimes the quest for precision blinds us to certain insights that we can as yet only formulate haltingly; sometimes it blinds us to the importance of pursuing certain questions (and linking them to other questions) even when there is not yet an answer in sight.”—Jeremy Waldron [3]

At Concurring Opinions a couple of weeks ago, Professor Taunya Banks penned a delightfully provocative post titled “Fortune’s Bones: Is There Dignity after Death?” Banks introduces three different historical cases: the 1995 Body Worlds exhibit by Gunther von Hagens; the skeleton of an enslaved man (whose name was Fortune) who died in 1798 and was being studied by the anthropology faculty and students at Quinnipiac University; and perhaps the best known of the three, the story of Henrietta Lacks as recently discussed by Rebecca Skloots in her book The Immortal Life of Henrietta Lacks (2010), that together raise for her the question of whether or not the concept of dignity can be applied to deceased individuals, in other words, “Is there dignity after death?” The following paragraphs conclude her discussion, followed by my attempt to address her question:*

[….] “Scientists and anthropologists might argue that the cases of Fortune and Mrs. Lacks are distinguishable from Gunther von Hagens’ Body Worlds exhibit because the educational value is clearer in the former than the latter. They might also argue, as one Johns Hopkins researcher told me, that the HeLa cell is not part of Mrs. Lacks but has morphed into something quite different.[4] Thus it does not matter that her family consider the cell to be a living part of their deceased family member. Still others like academic Stephen Bates ask whether human corpses are different from skeletons or human cells. (Prenates, Postmorts and Bell-Curve Dignity, Hastings Center Reps. 2008) The more human-looking the remains, Bates writes, the more concerns about dignity seem to arise.

According to my colleague Leslie Henry, there are strong arguments for dignity after death as well as some laws that arguably recognize some type of dignitary interest. Physicians usually are required to secure consent from the deceased’s next of kin before using a cadaver to teach medical students. There are statutes that penalize the desecration of grave sites (beyond trespassing). There also is the Native American Graves Protection and Repatriation Act (NAGPRA) which required federal agencies to return ‘cultural items’ including human remains, to the descendants of Indian tribes and Native Hawaiian organizations. Granted none of these laws directly touch on the cases of Fortune and Mrs. Lacks.

In the end I offer no suggestions. But I am concerned because too often the people denied dignity in death, were also denied dignity in life.”

*           *           *           *           *           *           *

I’ve been pondering Professor Banks’ thoughtful and moving post for some time now and have arrived at the point at which temerity prompts me to share my tentative thoughts on (explicit and implicit) questions raised by her piece. I think it is true that there is something to the notion of a “dignitary interest” with regard to the dead (as individual persons). This is not my preferred term, however, as it suggests the decedent herself has post-mortem “interests,” which is eminently arguable and, I believe, not true.[5] But if we understand this dignitary interest as having something to do with the attitude and respect of the living toward the decedent as a previous embodiment or incarnation of transcendent value, a value which transcends sentience, then it’s possible to articulate a stipulative or précising definition which allows for the possibility (in some sense) of “disrespecting the dead” but not harming them. It is not that the dead person’s bones or cremated ashes, or some scientific sample of cells, as such, that incarnates the transcendent value of dignity; so we cannot speak, literally at least, of “continuing assaults on the dignity of the deceased.” Rather, with death, it is our memory of the fact that a person, with a unique narrative history, a person of intrinsic dignity and incomparable value or worth has passed, and death, as the converse of life, is an occasion for our individual and collective reflection on—as remembering, commemorating, and honoring—the precious nature of personhood, the powerful concept of dignity, and the nature of human normative agency. Our treatment of a dead person’s remains will reveal our ability to respect and to honor, and is therefore symbolic of, a human being who, for a brief period of time, was locus of the dignity of humanity in his or her own person, an individual who was, at one time, the incarnation of transcendent value.

In addition to or apart from recognizing the expressed preferences of the decedent about what to do with her remains, or attempts at inferring the wishes (e.g., by way of immediate family, closest friends, or end-of-life caregivers) of the decedent, and sans any traditional burial or after-death treatment and (ritualistic) practices associated with a decedent’s worldview, I think we might somehow express, reveal or evoke something of the dignitary attitude of respect in the manner in which we respond to the death of an individual and treat their remains. Such expression can come not only from those who knew or were close to the decedent, but also from those whose task is to handle the remains. We might, for example, mandate a period of memory and commemoration for the decedent that recognizes an individual of incomparable worth, of inherent dignity has died (regardless of whether such dignity was respected in the person’s lifetime or what kind of life that person lived; hence, again, this is not about any post-mortem interest as such), and deserving of acknowledgment and remembrance if only for this reason. I believe the manner in which we handle the remains can and should be the occasion for honoring or celebrating the dignity of personhood, for ritual remembrance of the respect owed humanity in the individual person. The remains can become the occasion or means whereby we honor the transcendent value of dignity that we failed (or may have failed) to recognize and respect during the person’s lifetime. This demonstration of respect I imagine to be very close—similar or analogous—to the Confucian understanding of the proper performance of li.[6] As Banks notes in her second paragraph above, there are some legal rules for particular situations or occasions that can be viewed as (directly or indirectly) permitting or encouraging demonstration of this respect. 

   The question then becomes whether or not we can find some means whereby we generalize such an attentive and focused demonstration of dignitary respect for all decedents, perhaps through engagement in a (secular) ritual celebration or honoring of the dead person in a way that affirms and reinforces our belief in human dignity and the incomparable value of normative human agency. After Stephen Darwall, this takes the form of recognition respect, distinguished from appraisal respect insofar as the former lacks the latter’s conceptual connection to merit and esteem: “Recognition respect concerns, not how something is to be evaluated or appraised, but how our relations to it are to be regulated or governed.” Following the performance of such a secular ritual (at least in the case of those whose wishes are not known or whose worldview does not prescribe some kind of funeral service), which might be as simple as a published or public proclamation (that speaks to the dignity and inviolability of the human person), perhaps in conjunction with or followed by a period of time in which the remains are not in any way disposed or used for scientific research, the decedent’s remains—be they bones and teeth, cremated ashes, or simply cells—could then be buried, scattered, or enlisted for scientific research. At this point in time, that part of ourselves which belongs indissolubly to the natural world (for a ‘transcendental’ or non-reductionist naturalist like Grant Gillett, this ‘part’ would be a human being absent the narrative ‘space’ of reason and will) and by which we make sense of the notion of embodiment, can now return to the natural world (including the natural world as understood in the sciences), no longer a locus of transcendent value in the form of human dignity. This (so to speak) return to the natural world upon the fulfillment of such conditions represents one point along the continuum of dignitary respect for the dead, for the living, and for those who follow us as loci of transcendent dignity. To leave our “human world” and return to the greater natural world is something the psalmist and secularist, the Muslim and the man-in-the-street, the Daoist and the Buddhist, can alike appreciate in a language that connotes spiritual, metaphysical and aesthetic sensitivity and sensibilities in speaking to the grandeur, the sublimity, the harmony, proportion, and beauty of nature. (Bear in mind that things are a bit different in the case of Mahāyāna Buddhism because, after Nāgārjuna, nirvāṇa and saṃsāra are said to be ‘not different’ when viewed from the ultimate nature of the Dharmakāya, for an individual can attain nirvāṇa in this lifetime by following the Buddhist path. Their duality is only (a) conventional (truth), for if they were ultimately different (or expressed an absolute truth) this would be impossible. By implication, this speaks to the conventional duality of life and death as well, hence a ‘return’ to nature is only true conventionally speaking, and thus for any of us who have not had the requisite spiritual realization that establishes the non-difference between nirvāṇa and saṃsāra…or life and death, it will appear as absolutely true. Something comparable to this might also be the case in Daoism.) But as a condition of this return to nature, a ritual or solemn acknowledgement of transcendental dignity and intrinsic inviolability of the human person in reference to the decedent, including a proscribed period in which the decedent’s remains are not to be used for any educational or scientific purposes, could go some way toward communicating the all-important value of human dignity and our respect for the nature of personhood as indicative of the manner in which our species transcends the natural world.

Now, for various reasons, some of them of Kantian provenance or inspiration, showing respect for such dignity has been taken to mean acknowledging the person’s (normative) human agency (as a capacity), in the sense that the ways of being (a) human (animal) distinguishes us from our nonhuman animal relatives. This means honoring both our “being” and “willing.” David Luban, who prefers a naturalistic and non-metaphysical account of dignity—albeit one with “ontological heft”—believes Kant was speaking more about “willing” than “being,” but I think he’s mistaken on this point. In any case, Luban’s discussion of dignity is largely intended for legal ethicists (although it has wider value outside that application, as he himself suggests and demonstrates), and in this context he speaks of the lawyer listening to the client’s “story,” every person having a “story” to tell insofar as they are “authors” in some measure or another of their lives (and, as characters, part of the narrative accounts of at least some of those with whom they have interacted over the course of their lives). These stories revolve around “meaning” of various kinds, however inarticulate or disturbing we might, as outsiders, find them to be (think of those accused of the most heinous crimes), for to “have a story,” Luban writes, “means being the subject of experience, and it means existing in a web of commitments, however detestable or pathetic those commitments may be.” Luban’s naturalistic rendering of dignity appears unable to account for how we might accord dignitarian respect toward the decedent, after all, the author of the story, the subject of the experience, is no longer with us. And yet he or she may become a character or even protagonist in the stories of those who survive and follow the decedent, for we are, as has been said “inveterate story tellers” (folk psychological theory, say, like that proffered by Daniel Hutto, is here quite useful in accounting for this fact). These stories could be seen as functioning to remind us what it means to be human, involving questions of individual and collective identity, memory, and meaning, for example.[7] In short, we treat the dead with respect (more about this in a moment), as a reminder to the living what it means to live a human life, for death is a vivid and insistent reminder of the value and beauty of life (human and non-human), a value and beauty that becomes part and parcel of the best stories we tell. Luban’s approach might be filled out or simply supplemented with recent work in narrative ethics and narrative metaphysics, especially if we should want to employ it for treating the question of “dignity after death.”

May Catholic Supporters of Marriage Equality Receive Communion?

Can a Catholic who upholds marriage equality receive Holy Communion?  This was the question put to Archbishop Allen Vigneron of Detroit, who answered in the negative, declaring that Catholic supporters of marriage equality should refrain from the Eucharist.  They "deny the revelation of Christ entrusted to the Church," the Archbishop said, and added:  "This sort of behavior amounts to publicly rejecting one's integrity and logically bring[ing] shame for a double-dealing that is not unlike perjury."

On April 12, however, retired Detroit Auxiliary Bishop Thomas Gumbleton contradicted Vigneron and reassured Catholics: "Don't stop going to Communion. You're okay."

So, in this Motor City clash, who is right?  To resolve this question in absolute terms, we need to know more about what Archbishop Vigneron was thinking.  It is possible that he meant only to address Catholics who believe that marriage equality is a settled matter of ecclesiastical law and doctrine.  That is, he may have been speaking to Catholics who wish to have local parishes perform same-sex marriages as a matter of internal Church practice.

But it is more than likely he had something else in mind.  And that was to speak to Catholics who believe that secular society should adopt an expansive understanding of marriage, embracing both heterosexual and homosexual unions so as to accommodate the needs of a rich and diverse nation.  Clearly, one of the Archbishop's principal sources for his statement, the Detroit canonist Ed Peters, had this in mind when he wrote that "[t]he Catholic Church has the right and duty 'always and everywhere to announce moral principles, even about the social order, and to render judgment concerning any human affairs insofar as the fundamental rights of the human person or the salvation of souls requires it.'"

Well, OK, then, where to start? American marriage law has never conformed precisely with the Catholic understanding of marriage.  Never. To be sure, early American marriage law possessed a religious character, derived variously from Anglican canon law and the cultural Calvinism that defined sexual mores for much of American history.  But even when American marriage law was distinctly Christian, it was never distinctively Catholic.

And that is certainly true today, as marriage has grown increasingly secular in the post-World War II era.  What about divorce?  The Catholic Code of Canon Law teaches that an essential property of marriage is its "indissolubility" (c. 1056).  From the very beginning of American history, however, secular courts have been in the business of decreeing divorces and permitting persons to move freely to new spouses, a process that greatly accelerated with the enactment of no-fault divorce in the 1960s and 1970s.

Surely, we would expect to see bishops and archbishops vigorously defend this essential property of marriage by reminding Catholics that they should not support a legal regime that permits divorce.  Perhaps Catholic lawyers who have a family-law practice should never take a divorce case?  Perhaps Catholic judges should resign from the bench?  Perhaps Catholics in the pews should be called upon to ask their legislators to repeal American divorce law?  Ireland, until the 1990s, did not have secular divorce courts, relying instead upon ecclesiastical tribunals.  Perhaps our own secular law of divorce needs to be rolled back.  That, at least, is where Ed Peters' logic would lead.

And what about contraception?  In 1965, in the case of Griswold v. Connecticut, the United States Supreme Court recognized access to artificial means of contraception as a constitutional right.  This constitutional doctrine stands squarely athwart the Church's teaching on contraception as it is expressed in Humanae Vitae.  Perhaps Catholic jurists should demand Griswold's reversal.  Rick Santorum, at least, seems to think that should be done.  And when Griswold is reversed, the old laws against contraception should be once again be enforced.  Again, the same logic that would ban supporters of marriage equality from Communion could be extended to cover all those who refuse to support the reinstatement of the old contraception prohibition.

What of in vitro fertilization?  Once again, must Catholics rally to outlaw most forms of in vitro fertilization?  And must Communion be used to police this political cause?  What of pre-nuptial agreements made in contemplation of divorce?  Should these also be outlawed?  The list could be extended.

The point in saying all of this, of course, is to stress that on matters of divorce, contraception, and even in vitro fertilization, Catholics have reached a modus vivendi with the larger secular society.  Catholics truly believe in the indissolubility of marriage.  That, for Catholics, is what makes marriage sacred.  And even while most Catholics practice contraception at some point in their lives, they also, most of them anyway, acknowledge that opposition to contraception is part of their Church's teaching.  Same goes for in vitro fertilization.  Most Catholics appreciate the moral dilemmas posed by this practice.  But Catholics by and large do not try to outlaw these practices as a matter of secular law,  nor do bishops try to use Communion as a means of enforcing this sort of political agenda.

If the Catholic Church and secular society can achieve co-existence on these points, why not on marriage equality?  If a Catholic can believe that a secular divorce law is allowable, even though it is opposed to an essential property of marriage, how is that different from a Catholic who believes that secular law should adopt marriage equality, even if it does not conform to the Catholic understanding of marriage?

What this line of questioning is really calling for is a searching re-examination by Catholic thinkers of Church/State and Church/Society relations.  What does it mean for the Catholic Church to exist in a world that is authentically pluralistic?  These are questions, however, that should be considered in another post, on another day.

Cross-Posted at http://www.huffingtonpost.com/charles-j-reid-jr/may-catholic-supporters-of-marriage-equality-receive-communion_b_3094338.html

Political Advocacy and Academic Freedom

On Saturday, Ross Douthat wrote about the conflict between a neutral and impartial press and a press out to advocate for social justice. I was reminded of those who have what I think is a shriveled sense of the role of academics and the nature of scholarship.

There are many, but Larry Alexander (77 U.Colo.L.Rev. 883 (2006)) has an excellent statement of what might be the dominant view (though his essay is marred by a myriad of unsupported or thinly supported conclusions about political advocacy in the contemporary university, conclusions that may or may not be correct). Alexander maintains that an academic follows arguments and evidence where they lead regardless of whether they support his political goals. He contrasts this with the political advocates who know the conclusions they wish to reach and cast about only for arguments and evidence that supports their views. These characterizations are framed by a guarded (if I read him correctly) admission that normative scholarship is properly a part of university life.

Alexander describes normative argument as a branch of philosophy and asserts that there are well established standards for judging normative discourse that do not depend on one’s normative commitments. I agree that normative discourse generally can and should be evaluated without regard to one’s normative commitments and that there are well established standards for doing so, but I do not agree that normative arguments are a branch of philosophy. Rather philosophy as a discipline has a certain style of normative argument. Law school scholarship is filled with normative argument; it usually is not philosophic in character; and philosophers would be less competent to judge it than law professors. The same is true of other disciplines though I think a significant problem with the university is that there is not enough normative argument particularly in political science departments.

I have given Alexander a narrow reading on the role of normative argument in the university, and he might well agree with what I have said. My main issue is what appears to be a narrow reading of academic. I do not deny that the impartial academic described by Alexander is one form of academic. I also agree that professors who employ only arguments that support their position while ignoring arguments on the other side are engaged in shoddy scholarship. But political advocacy can be excellent scholarship when it is good advocacy. It simply does not matter whether the scholar started out with a political conclusion in mind or got to the conclusion in the course of solving a puzzle. Indeed, I suspect that most of the best normative scholarship has been produced by the committed rather than the puzzle solvers, mainly because I think most scholarship gets started by a strong commitment or intuition rather than by a scratch of curiosity – though I have started projects from both perspectives.

Alexander argues that political advocates do not deserve academic freedom. But this loses sight of an important argument for academic freedom. It is highly desirable for scholars to publish their work based on their independent views rather than to have it controlled by a central administration. In a democratic society, it is particularly important to have political arguments developed in an independent way.  Alexander wants depoliticized scholarship and hiring. I agree that scholars should generally be hired regardless of political view, but in a society where sound bites and televised shouting pass for political discourse, we need more well-argued political advocacy – not less. 

Religious Worldviews: Characteristics

I think the presence of most if not all of the following “characteristics” helps us clarify what we often (and perhaps should) mean by the term “religion” or religious worldview (these might even serve as criteria for identifying ‘religion’ for legal purposes). It is capable of encompassing both “Western” and “Eastern” religious traditions, theistic and nontheistic worldviews, as well as many new (although not necessarily ‘New Age’) religions. The assumption here is that there is no readily or agreeably identifiable “essence” to religion, even if we often focus on certain dimensions or characteristics, say, a core set of beliefs (as a central set of truth-claims), the “transcendence” of religion, certain sorts of religious experience: of the “numinous” or “mystical” or “revelatory” and so forth. Our next task would be to identify what it means to cleave to a non-religious worldview.*

1. Belief in supernatural beings (spirits, gods, etc.), God, or a supreme divine principle or force (in the latter case, comprehensive or ‘holistic’ in structure).

 2. A distinction between sacred and non-sacred (or ‘profane’) objects, space, and/or time.

3. Ritual acts centered upon or focused around sacred events, places, times, or objects. This includes such activities as worship, prayer, meditation, pilgrimage, sacrifice (vegetable, animal, or human; literal or figurative), sacramental rites, lifecycle rituals, and healing activities.

4. A moral code (ethics) or “way of life” believed to be sanctioned by the gods or God, or (in an informal sense: logically) derived from adherence to the divine principle or force.  (There is no assumption here that morality need be religious, indeed, morality is conceptually distinct from and independent of religion.)

5. Prayer, worship, meditation, and other forms of “communication” or attunement with the gods, God, or the divine principle or force.

6. A worldview that situates, through (usually mythic) narrative, the individual and his/her community and tradition within the cosmos, world, and/or history. It is a significant, if not primary source of one’s identity, both in its individual form and group aspect. The worldview articulates the meaning—makes sense of—the group’s cultural traditions: its myths, history, rituals, and symbols. This often involves treating questions of the meaning of life and death (and what, if anything, follows death for a human being), of suffering and evil, of what philosophers term questions of personal identity, of humanity’s relation to the cosmos and natural world, its relation to nonhuman animals and perhaps a “spirit” world or “other worlds.” The worldview articulates the fundamental values of a religious community so as to affirm its most important values and/or its “ultimate value.”

7. Characteristically religious emotions or attitudes associated with that thought to be of divine provenance or endowed with “spiritual” power: a peculiar form of awe and fear, “dread” or angst, existential anxiety, sense of mystery, adoration, reverence, love, devotion, hope, a sense of guilt or shame, serenity, compassion, bliss, etc.

8. A more or less total organization or structuring of one’s life or individual lifeworld based on an understanding (hence interpretation) of the religious worldview (the ‘lifeworld’ may include beliefs, values, and practices not directly linked to or associated with a religious worldview). This understanding does not necessarily coincide with the normative pictures painted by those with religious authority or the “official” worldview of the religion, indeed, it may be rather idiosyncratic or even cognitively crude or fairly sophisticated, psychologically and philosophically speaking. Prima facie evidence reveals the religious adherent believes in or is attempting to live in accordance with the worldview.

9. A social group wherein personal and collective—cultural—identity is forged by the aforementioned factors.

10. Artistic or creative expressions related to any of the above characteristics.

We might keep in mind that the sort of analytical clarity sought in philosophical circles or the desiderata of semantic legal precision may not be applicable if by that is meant a definition (or something very close to a definition) of religion. Why? The late B.K. Matilal provides one reason from the philosopher A.N. Whitehead:

“Insistence on clarity at all costs is based on sheer superstition as to the mode in which human intelligence functions. Insistence on hardheaded clarity issues from sentimental feeling, as it were, a mist cloaking the perplexities of fact.”

* This list of characteristics is inspired by and in part follows that first provided by William P. Alston in the volume he edited, Religious Belief and Philosophical Thought: Readings in the Philosophy of Religion (Harcourt Brace Jovanovich, 1963): p. 5.

Addendum: In response to a comment to this post, I thought the following might be of interest: There has long been a recognition among anthropologists, sociologists, and historians (and even a few political scientists) that nationalism is often intertwined with religion and that nationalist and political ideologies frequently possess religious or religious-like characteristics: the radical break with tradition sought in the French Revolution resulted in a new political culture filled with rhetoric, symbols, images, and festivals with mythological and religious precedent or resemblance. The cases are varied and widespread: Zionism in Palestine, Maoist Marxist-Leninism in China (which functioned like a state religion), and what Robert Bellah famously (or infamously in some quarters) defined as “civil religion” in this country, to cite several of the more conspicuous examples. In the words of my teacher and mentor in the study of religions, Ninian Smart, “It is a not uncommon observation that modern nationalism functions like a religion.” So too the late Marxist historian Eric Hobsbawm notes in his work on “nations and nationalism,” the “links between religion and national consciousness can be very close, as the examples of Poland and Ireland demonstrate,” and as is often noted today with regard to Islam in the Arab world. Yet we should also point out, with Hobsbawm, “that the prevalence of transnational religions, at all events in the regions of the world in which modern nationalism developed, imposed limits on religio-ethnic identification.” Finally, again with Hobsbawm, and perhaps indicative of the complexities of the historical entanglement of religion and nationalism, sometimes religious conversion has led to the creation of two distinct nationalities: “for it is certainly Roman Catholicism (and its by-product, the Latin script) and Orthodoxy (with its by-product, the Cryllic script) which has most obviously divided Croats from Serbs, with whom they share a single language of culture.”

William Stringfellow: Patron Saint for Religious Left Law?

Here at the Episcopal Church at Cornell, a number of us have been getting more and more excited exploring the bracing theological vision of William Stringfellow, who was a lay theologian and lawyer by training, close friend of Daniel Berrigan (Berrigan was at Stringfellow's house when the FBI 'caught' him for his anti-war activities), and biblical theologian of the highest order.

 

In the sixties when he visited the United States and was given a tour of Harlem where Stringfellow did much of his theological/legal work,  Karl Barth declared that Stringfellow was the voice to whom American Christians ought to be listening. 

More recently, Rowan Williams, one the finest English language theologians of our time, suggested that Stringfellow, who had a mere semester's worth of formal theological training, was one the most important American theologian of the past fifty years, a writer of "astonishing originality and power." 

 

Significantly, Stringfellow's work has been even more influential among legals minds. Anthony McThenia, retired professor of law at Washington and Lee Law School, is one of Stringfellow's greatest interpreters, editing a remarkable volume entitled Radical Christian and Exemplary Lawyer. In that volume is, among others, a wonderful essay by Emily Fowler Hartigan of St. Mary's Law School in San Antonio on the profound and lasting impact Stringfellow's thought has had on her own practice of law. 

Stringfellow is not easy--he is prophetic and at times overwhelmingly so, and he was a quite complicated man. Openly gay, a defender of the Episcopal Bishop James Pike at his heresy trial in the 60's, and a resolutely biblical theologian who rarely discussed more scholarly forms of thought, he thought that if you wanted to find Jesus, you should go to hell first to look for him! 

 

But for those of us who believe that the practice and study of law has theological, political, and ethical implications, for those of us who are progressive yet unwilling to hand the language of religion over to the voices of nationalist, exclusionary, and politically reactionary forces, we could hardly ask for a more powerful interlocutor. Here at Cornell where Stringfellow's papers are housed, a number of us, including faculty, are beginning to think the time is perfectly ripe for a rediscovery of this remarkable voice--a thinker who was committed to thinking about the law in all its messiness and richness; the practice of law as more than a job. It is, he thought, a vocation, and we might hope that  this will continue be a topic for conversation for all who believe that the law has healing resources to convey. 

 

 

Congratulations to our friends at Mirror of Justice!

Our friends at Mirror of Justice are now--a little belatedly--celebrating the 9th Anniversary of MOJ.  A hearty congratulations!

DOMA, Federalism, and the Need for Deliberation on the Left

When Justice Kennedy suggested that he might vote to invalidate DOMA on the ground that the Constitution does not give the Congress the power to define the family, many liberals were cautioned to be careful of what you wish for. In the current political constellation, liberals favor a strong Federal government with generous interpretations of the powers conferred by the Constitution. This is understandable given the conservative attempt to block the New Deal and the Southern emphasis on state’s rights which served as a proxy to enable continued race discrimination. Of course, it is integral to liberalism to support strong legislative power to enforce the Civil Rights Amendments. And the Court’s stingy interpretation of section five of the fourteenth amendment strikes me as a betrayal of clear constitutional principles. (You would almost think the Civil War was never fought).

But the favoring of strong commerce power seems to me to be less integral to liberalism or the left and more a product of path dependence. I am not suggesting that the Federal government should not have the power to regulate the national economy and I regard the conservative claim that Congress lacked power under the commerce clause to enact the Affordable Care Act to be indefensible (even though the claim was accepted by five of the Justices). But I think the Court was right to say that Congress lacked power to outlaw the possession of a gun near a school. It may play well to the folks back home to know that their congressman opposes guns near school, but the commerce clause argument wrongly assumes that federal intervention is needed for a local law enforcement problem while relying on remote commercial effects.

For those who think it is a mark of the left to demand centralization, I would merely observe that the Students for a Democratic Society and Gandhi were strong proponents of decentralization. I doubt many conservatives would regard them as fellow travelers.  

"If the Church Is Serious About Welcoming Gays..."

That's the title of an op-ed in this morning's Times.  Here.

The Change in Catholic Thinking About Jews and Judaism

With permission from George Conk, I am posting his review of From Enemy to Brother first posted at Blackstone Today here.

There is one other event which transcends the limits of the year, since it is measured in centuries and millennia in the history of this city and of this Church. I thank Divine Providence that I was able to visit our "elder brothers" in the faith of Abraham in their Roman Synagogue! Blessed be the God of our fathers! The God of peace!

Pope John Paul, II December 31, 1986 

How did this epochal change of understanding and its particular expression of brotherhood come to pass, this official, and personal Papal renunciation of centuries of Christian disparagement of Jews and Judaism?  John Connelly, UC Berkeley historian, finds its roots in the efforts of Catholic intellectuals - largely converts - from the border regions of northern and central Europe.  In his much lauded  intellectual history From Enemy to Brother Connelly justifies his subtitle `The Revolution in Catholic Teaching on the Jews 1933 - 1965'.
It is a brilliant intellectual history locating the origins of the change in Austrian and central European Catholic intellectuals who fought Nazi racism and sought to respond appropriately to the Holocaust.  The struggle was not a liberal repudiation of racism nor was it a simple repetition of "love your neighbor".  It yielded an epochal theological embrace - that Judaism is the root, and Christianity a branch grafted to the root.  They finally accomplished a revolution at Vatican II, abolishing the "mission to the Jews" and transforming the relation of Christian to Jew as an ecumenical one of equals, not of evangelist to stranger.

At the center of the narrative are Johannes Osterreicher - an Austrian Jewish convert and Karl Thieme - a Protestant convert - as intellectual sparring partners struggle against Nazi racism, and then `anti-judaism' to find a basis for resolving the ancient conflicts of Jews and Christians.  They developed their theology rooted in Paul - the self-described Apostle to the Gentiles.  In his letter to the Romans Paul affirmed God's loyalty to the Jews, but not without ambiguity:

In respect to the gospel, they are enemies on your account; but in respect to election, they are beloved because of the patriarchs. For the gifts and the call of God are irrevocable.  [Romans 11]

This yielded Nostra Aetate, the great Vatican II statement of respect for other religions and repudiation of anti-semitism and embrace of the Church's Judaic "root" to which Gentiles are "grafted", concluding:

We cannot truly call on God, the Father of all, if we refuse to treat in a brotherly way any man, created as he is in the image of God. Man's relation to God the Father and his relation to men his brothers are so linked together that Scripture says: "He who does not love does not know God" (1 John 4:8).
No foundation therefore remains for any theory or practice that leads to discrimination between man and man or people and people, so far as their human dignity and the rights flowing from it are concerned.

The Church reproves, as foreign to the mind of Christ, any discrimination against men or harassment of them because of their race, color, condition of life, or religion. On the contrary, following in the footsteps of the holy Apostles Peter and Paul, this sacred synod ardently implores the Christian faithful to "maintain good fellowship among the nations" (1 Peter 2:12), and, if possible, to live for their part in peace with all men, so that they may truly be sons of the Father who is in heaven. 

Though generally laudatory, Garry Wills, in the New York Review of Books, lamentsthat Connelly   did not write a biography of John nee' Johannes Osterreicher.   Wills would have done better to confess a personal preference for biography.  But I, like Michael Winter, in a review at NCR online find Connelly's account of the exegetical history to be  compelling.  And I agree with Connelly's student Gene Zubovich.  He writes at U.S. Intellectual History Blog that Connelly has produced  an exciting intellectual history which opens new avenues of exploration - including the remarkable observation that in the Church's triumph over racism and anti-Judaism liberalism was not a force, but rather the shock of the Holocaust demanded reconciliation of its horrors with a Christian eschatology to which I, like other moderns, have payed little heed.

Pope Francis and Museum-Piece Catholicism

Jaroslav Pelikan once called tradition the living faith of the dead and traditionalism the dead faith of the living. I am reminded of this pithy observation as I watch right-wing Catholics react to Pope Francis' warm-spirited evangelization. The comments on Rorate Caeli (in Latin, "let the heavens fall like the dew"), were frightening in their intensity. Speaking of the pope's decision to wash the feet of women convicts on Holy Thursday, one commentator wrote: "Wonder why he didn't wait until tomorrow [Good Friday] to stick a spear in the side of the Bride of Christ?" Another commentator added, using bold print: "Francis is being OPENLY DEFIANT to Tradition in the Church." (See Comments section to "The Official End of the Reform of the Reform -- By Example," Rorate Caeli, March 28, 2013).

It is this idea of tradition that is worth considering. According to the Catechism of the Catholic Church, the "living transmission" of the message of salvation is "called Tradition, since it is distinct from Sacred Scripture, though closely connected to it" (paragraph 77).

The right-wing furor over the pope's foot-washing puts into stark relief two ways of viewing Tradition. The first approach is that of the commentators on Rorate Caeli. Tradition is fixed and unchanging. What was done yesterday must be done today, and tomorrow, and the day after that, world without end, Amen. The role of priests and the hierarchy on this model is not unlike museum curators. They preserve the past, seal it in glass cases, reverence it, bring it out on special occasions, surrounded by pomp and glory. And it is the duty of the laity to gaze on with due admiration at the delicacy and the intensity of these wonderful old masterworks.

Nowhere is this reverence for a fixed and unchanging past on better display than among ecclesial conservatives in today's Catholic Church. Mass must be exactly as it always was. The priest must chant. Communion must be on the tongue. Women must wear headscarves. And only men may have their feet washed at the Holy Thursday because, well, Pope Pius XII decreed it. But this idea of the fixed and unchanging Church goes far beyond the details of liturgical celebration. Just look at the debates over moral teaching.

The language of the Catechism, however, cautions against static conceptions of Tradition. After all, it refers to the "living transmission" of practice and doctrine. The adjective "living" insists upon a dynamic application of Tradition. It is tradition that is adaptive and forward-looking, not enclosed and self-referential.

And indeed, if we look at Church history we do not find static, changeless, timeless truths but a dynamic response to changing conditions. Consider just one fundamental issue: the composition of the Christian New Testament. The Bible was not automatically known to the first Christians. It was developed incrementally, in stages, through reflection, discussion, disagreement and debate over the first four hundred years of Church history.

Important theologians, still respected and revered by the Church, relied on books that are not considered canonical today. Clement of Alexandria (c. 150 - c. 215) made use of the Gospel of Thomas and the Traditions of Matthias. The Acts of Paul and Thecla, the legendary account of Paul's travels with his feminine companion Thecla, was invoked by a number of orthodox writers. St. Ambrose, that paragon of proper belief and practice, presided over his diocese from the Cathedral Church of St. Thecla and recommended to the nuns of his diocese the life of St. Thecla as a model of virginal dedication. Other orthodox writers meanwhile, rejected books now considered canonical. Thus the sainted fourth-century bishop Gregory Nazianzus maintained that the Book of Revelations was not biblical and should therefore be excluded from the Scriptures.

The point of this historical exercise is to demonstrate that even on big issues -- and no question is larger than defining what counts as Scripture -- tradition played the leading role in determining what got in and what was omitted. It was a messy, dynamic process. Tradition was not handed down in a single moment of radiant light on Calvary, but was developed by Christian communities trying to learn the authentic Word of God for themselves and to shape their lives accordingly. Tradition is not static, but dynamic.

The same phenomenon repeats itself in the area of moral teaching. John Noonan has shown how Church doctrine developed in areas like usury (see his book, "The Scholastic Analysis of Usury"). In the early middle ages, the Gospel verse instructing us "to lend freely, asking nothing in return" was taken literally as forbidding all interest on loans. In the high middle ages, canonists and theologians invented legal fictions that allowed for the taking of moderate interest where it could be shown that the money lent otherwise had productive value. And by the time we reach the 18th and 19th centuries, even the fictions disappeared as moral theologians, learning from the experience of Christian merchants, concluded that the taking of interest was not sinful but a necessary part of commercial life. It was not a crime, but an engine of prosperity for many people.

Pope Francis grasps this. He understands that tradition is a continually unfolding process and that individuals are not passive observers but must play a role in the constant renewal and re-creation of what it means to be Church. Nothing can ever be handed on exactly, because historical context is constantly shifting, altering our vantage point and making all things fresh. It is this deep self-awareness that makes him so very appealing to such a large audience of Catholics and non-Catholics alike.

And it is this openness to revision that so deeply threatens what the conservatives take to be the eternal verities. When he declined the elaborate vestments at his first appearance on the balcony of St. Peter's, when he asked for the crowd's blessing, when he referred to himself modestly as the "Bishop of Rome," he was symbolically altering the way people look at the papal office. And if we view how the papacy can change, conservatives fret, then there is nothing that can't be accommodated to fit the temper of the times. Hence the alarm at washing the feet of women -- and Muslims -- on Holy Thursday.

The Church cannot be all change, all flux, lacking all core or conviction. But at the same time, the Church has been most alive when it has been swept by change -- whether that be the ascertainment of the Books of Scripture, the founding of the great religious orders, like the Franciscans and the Jesuits, or the shifts in Church teaching brought about by the Second Vatican Council. Who knows, perhaps we are once again about to experience an exciting time of change?

Cross-posted at: http://www.huffingtonpost.com/charles-j-reid-jr/pope-francis-and-museum-piece-catholicism_b_3010868.html 

Andrew Koppelman, "More Intuition Than Argument"

Northwestern law prof Andy Koppelman reviews, in the new issue of Commonweal, the book What Is Marriage?  Man and Woman:  A Defense, by Sherif Girgis, Ryan Anderson, and Robert P. George.  The book is the basis of an amicus curiae brief that Robert George et al. have submitted to SCOTUS in the two "gay marriage" cases being argued before SCOTUS this week.  Andy's review ends with this:

"That claim’s most fundamental difficulty is the short distance from premise to conclusion. The union of the married heterosexual couple is uniquely good because...well, because the union of the married heterosexual couple is uniquely good. This raw intuition comes decorated with a complex theoretical apparatus, but that apparatus does no work. It’s like one of those old trick math problems, which at first glance seems to require complex computations:

7 + 8,398.14 × B ÷ √55 - 8,398.14 × √55 ÷ B = ?

Look again, and it’s clear that all the complexity cancels itself out, and that you end up right back where you began.

The publication of What Is Marriage? is a public service. It advances understanding of a perspective that many (though fewer and fewer) Americans share, but it is unlikely to persuade anyone who doesn’t already agree with its claims. It is a lucid window into a disappearing worldview."

The entire review is here.

Toward an Understanding and Explanation of Terrorism: Beyond Current Counterterrorism Strategies

[P]eople don’t simply kill and die for a cause. They kill and die for each other.—Scott Atran

Militancy in insurgent organizations and involvement in suicide attacks seem to be connected to the economic cycle, to downward social mobility processes, and, most of all, to particularly traumatizing personal experiences, such as the killing of friends and relatives, imprisonment, and isolation due to emigration.—Luca Ricolfi (discussing suicide terrorism in the Palestinian struggle for self-determination beginning in 1981)

Much of post-war ‘terrorism’ [in the twentieth century] was linked to specific situations of decolonization and dissipated on independence.—Ben Saul

After reading an important article by Phillip Carter and Deborah Pearlstein in Foreign Policy, “The Appeal of the Courts,” concerning the counterterrorism strategies of states (individually and in concert) and the reasons why a “blended, postwar approach” in which “the military plays a supporting, not a leading, role” has of late become the dominant model and should in fact be the preferred model generally for such strategies, I thought to respond with the following questions:

I only wish as much thought and attention was devoted to the nature and causes of terrorism, especially non-State terrorism in the context of political struggles, for example: why do rational individuals (psychological evidence testifies to the predominantly ‘normal’ cognitive and rational orientation of these individuals) involved in groups resort to such tactics? What are the dominant motivational variables involved in the choice for terrorist acts? Why do these individuals and groups attempt to provide moral justification for their acts? What are the factors (beyond sheer State repression) responsible for “de-radicalization” of terrorist groups? How do we make those factors more salient and probable so actors find sufficient reason to abandon terrorist tactics (which need not necessarily mean a corresponding commitment to liberal democratic principles and practices, but it is certainly a worthwhile achievement nonetheless and might portend such commitment)? What does the history of terrorism teach us about such groups vis-à-vis their socio-economic and political (local, national, and global) environments? What does it mean to notice that one-time terrorists have later become “respected” statesman or political actors in democratic processes (e.g., in Israel, South Africa, and Ireland) or would-be democratic societies? How do we cool the highly volatile and counter-productive passions that acts of terrorism stir among elites and members of the public alike (and lead to all manner of violations of due process and habeas corpus, among other legal and human rights violations)? Why is counter-terrorism conceived solely in legal and/or military terms (be it predominantly military or the ‘blended, post-war approach’ discussed in the article)? Why is “counterterrorism” primarily about and preoccupied with non-State actors and largely neglectful of state or state-sponsored terrorism, the latter causing immensely more deaths and harms than the former (which of course does not imply we need ignore or trivialize the former kind, only that we view it in proper perspective)?

And, while it should go without saying, asking and endeavoring to systematically and sincerely answer these and related questions (which require cross-disciplinary collaboration among those involved in law, the social sciences, psychology, and moral and political philosophy) of course in no way represents an attempt to morally or politically justify terrorism (setting aside for the moment a definition of terrorism and terrorist acts, although I’ve found C.A.J. Cody’s definition* useful if not persuasive for most purposes).

In a future post I’ll address what some researchers have said by way of framing and beginning to answer these questions.

* “A political act, ordinarily committed by an organized group, which involves the intentional killing or other severe harming of noncombatants or the threat of the same or intentional severe damage to the property of noncombatants or the threat of the same.”

Nicholas C. Petris, Old-School Democrat (1923 - 2013)

“‘Politics’ is not some strange activity conducted by ‘them’ rather than ‘us.’ The fruits of democracy are best seen through the lens of ‘everyday politics,’ in the schools and the hospitals, in the roads and the trains, in the courts and the shops, in community groups and social protests, in bars and sports clubs, in work and play, and in most of all the freedom to question and challenge. From the nursery to the nursing home ‘everyday politics’ improves people’s lives.”

“Democracy revolves around the possibility of collective decision making about collective action for the common good but we have allowed it to become redefined as the freedom of individuals to pursue their own selfish interests and decide upon their own actions. The real failing of politics [in societies like ours] is therefore the manner in which it has cultivated societies in which everyone believes they have a divine right to ever-rising living standards irrespective of their own personal endeavor, and if life fails to deliver then it must be those loathsome politicians who are to blame. No politician has the magic to satisfy a world of greater expectations, and the world does not have the resources to satisfy those expectations. Demonizing politicians might contribute to the myth of collective innocence but at the end of the day we are all complicit.”

“Politics is, at base, a moral activity and therefore a lack of trust in the capacity of political institutions, political processes, and politicians reflects a much deeper lack of faith in ourselves and in each other. This is because the nature of politics defines the nature of any society. [….] We might also understand that politics delivers rights and responsibilities and from this reflect just a little on whether we have all become a little too good at taking and demanding but possibly less good at giving and offering. ‘Politics’ does not simply involve the conduct and decisions of politicians but also creates a set of expectations regarding the behaviour and decisions of the public. [….] The reduction of everything to financial value or a market-like relationship has arguably shaped our sense of entitlement while dulling our sense of belonging to a broader political community.”—Matthew Flinders, Defending Politics: Why Democracy Matters in the Twenty-First Century (Oxford University Press, 2012).

With the above by way of backdrop, I’d like to draw your attention to the recent death of what was—for want of a better expression—an old-school politician from the Democratic Party from my home state, Nicholas C. Petris (February 25, 1923 - March 20, 2013). As noted in his Wikipedia entry, Petris “was a California State Senator from 1966 until 1996. A Democrat, he represented the 11th district from 1966 to 1976 and the 9th district from 1976 until he was termed out in 1996. He was previously in the California State Assembly, representing the 15th district from 1958 until 1966.”

And now, from his obituary notice in the Los Angeles Times:

“Nicholas C. Petris, who was a leading liberal voice for nearly four decades as a California state senator and assemblyman representing his hometown of Oakland and other East Bay cities, has died. He was 90. [….]

A Greek American known for his eloquence from the floor of the state Senate, Petris championed a host of liberal causes during his career, offering legislation on behalf of the poor, the sick and the elderly. A Democrat, he also wrote laws that increased environmental protections and expanded the rights of farmworkers and tenants.

‘He was the last of the real giants of the old Senate,’ former state Sen. John Burton, now chairman of the California Democratic Party, said Thursday. ‘He never compromised his principles and was true in what he believed — a real intellectual liberal.’

Legislation that bears Petris’ name, the 1967 Lanterman-Petris-Short Act, bars the involuntary commitment to psychiatric hospitals of most people with mental illness. He also wrote laws that required redevelopment agencies to build housing for low- and moderate-income residents, and prohibited smoking on airplanes, trains and buses in the state. As an assemblyman, he was also the co-author of legislation that was credited with saving San Francisco Bay from overdevelopment.

‘He felt that government was for people who needed help, that the wealthy are good on their own,’ said [Felice] Zensius, who worked for Petris for 25 years, the last 10 as his chief of staff. ‘So when crowds of lobbyists came to our office, it was people advocating for the mentally ill, the farmworkers, the elderly. That’s what he cared about.’ [….]

Nicholas Christos Petris was born in Oakland on Feb. 25, 1923, the son of Chris and Mary Petris, who were both Greek immigrants. He spoke mainly Greek until he started school. He earned a bachelor’s degree in journalism from UC Berkeley and a law degree from Stanford University. He served with the Office of Strategic Services during World War II, then worked as a lawyer before he was elected to the Assembly in 1959 and to the state Senate in 1967.

Petris was known for his oratory and for peppering his Senate speeches with quotations from Greek philosophers and politicians. ‘For Christ’s sake, Nicky, you’re doing Pericles,’ Burton said he would tease Petris, a reference to the great statesman of ancient Athens.

In 1991, Petris was among the many who lost their homes in the Oakland Hills to a devastating wildfire that destroyed more than 2,700 residences. The blaze also claimed his beloved personal library, filled with volumes of Greek philosophy, Greek history and English literature. Soon after, his colleagues in the Senate lined up and one by one presented him with books to help fill the bookshelves in his new library. ‘I was in tears the whole time,’ he told the Modesto Bee several years later.” [….]

I hope we might one day soon once again deserve politicians of such integrity and stature.

Addendum: There’s a wonderful oral interview conducted by Gabrielle Morris (Regional Oral History Office, University of California, Berkeley) and transcribed for the State Government Oral History Program available (in different formats) in the California State Archives here (or here).

Same Sex Marriage, Commitment Ceremonies, Speech and Religion in the Great State of New Mexico

Last week I went to Santa Fe to see the New Mexico Supreme Court oral argument in a case where I had filed an amicus brief. Elane Photography, LLC v. Willock. The case involved a commercial photographer (more precisely her company) who refused to photograph a same sex commitment ceremony on the ground that she and her husband (the other member of the closely held company) were politically and religiously opposed to such ceremonies. The New Mexico Human Rights Commission and the New Mexico Court of Appeals concluded that she had violated the New Mexico Human Rights Act which prohibits discrimination on the basis of sexual orientation. The Commission and the appellate court rejected the argument that the act as applied violated free speech rights or freedom of religion rights.

My brief (on behalf of Mike Dorf and I) argued that the act as applied did not violate free speech rights. We took no position on the religion issue. The five member New Mexico Supreme Court is an impressive court. The justices are smart, quick, concerned, and very well prepared. Judging from the oral argument, it would appear exceedingly unlikely that they would find a free speech violation. On the other hand, it is possible that the photography company could prevail on freedom of religion grounds depending on how the Court interprets and/or applies a New Mexico statute protecting religious liberty. I think the outcome on that front is in some doubt.

One of the side light arguments in the case concerned the standard of review and its application. The company argued that the anti-discrimination interest was not compelling because New Mexico does not take it seriously enough to authorize same sex marriage. I had argued that the compelling governmental interest did not apply in any event. The statute is directed at discriminatory conduct and incidentally hits speech. The government interest is entirely unrelated to the message contained in the potential photographs. The statute applies to commercial carpenters, plumbers, restaurants, hairdressers, and photographers. If a First Amendment test applies, the test should be O’Brien (a somewhat toothless form of intermediate scrutiny), not a compelling state interest test.

It turns out, however, that there is some question whether or not same sex marriage is authorized in New Mexico. Three days ago, the City Attorney of Santa Fe released an opinion for the City Council (here) which argues that the New Mexico marriage law does not specify anything about the gender of the parties and that the New Mexico Constitution would invalidate any gender limitations because it requires equal treatment on the basis of sex. He concludes that same sex marriage is legal in New Mexico and that County Clerks may not refuse licenses to same sex couples. For excellent discussion by Andrew Koppelman, see here.

I doubt that this development will have much impact on the outcome in the Willock case (though it will be interesting to see if the Court refers to the City Attorney’s opinion), but it serves as a reminder that even if the Supreme Court holds this term that same sex marriage is not required under the equal protection clause (as Mike McConnell argues in today’s Wall Street Journal, it is doubtful that there is sufficient standing in the California case to give the Supreme Court jurisdiction to make that ruling), the states will be free to move forward on their own. 

Religion Without God

As we learn from the latest issue of The New York Review of Books (April 4, 2013), before his death Ronald Dworkin (December 11, 1931 – February 14, 2013) sent the editors a copy of his last book, Religion Without God, to be published by Harvard University Press later this year. The excerpt from the book’s first chapter in the NYRB appears provocative and promising. I hope to discuss it here at some point, although I may wait until I have the opportunity to read the entire book when it becomes available.

A couple of Jain symbols, or: the sacred and profane

The symbol on top represents the vow of nonviolence (ahiṃsā) in the Jain tradition. The wheel inside represents Dharmachakra (the ‘wheel of Dharma’ common to both Jainism and Buddhism). The picture below it is self-explanatory: I was struck by the resemblance. 

 

This Jain symbol, the Jaina pratīka, was agreed upon by all Jain sects in 1974 and thus officially adopted on the 2,500^th  anniversary of Vardhamāna Mahāvīra’s nirvāṇa. As Wikipedia rightly informs us, Parasparopagraho Jīvānām (परस्परोपग्रहो जीवानाम्), is a Sanskrit sūtra or aphorism of the Jain text Tattvārthasūtra [5.21]. It is closely translated as: souls render service to one another, and taken to imply or mean that all life is bound together by mutual support and interdependence.

Further Reading:

• Jaini, Padmanabh. The Jaina Path of Purification (University of California Press, 1979).
• Long, Jeffrey D. Jainism: An Introduction (I.B. Tauris, 2009).
• Pal, Pratapaditya. The Peaceful Liberators: Jain Art from India (Thames & Hudson, 1994, published in conjunction with an exhibition organized by the Los Angeles County Museum of Art, November 6, 1994—January 22, 1995 [and visited by yours truly]).

The 50th Anniversary of Gideon v. Wainwright

Today is the 50^th anniversary of Gideon v. Wainwright, 372 U.S. 335 (1963), a landmark case in U.S. Supreme Court history in which the Court “unanimously ruled that state courts are required under the Fourteenth Amendment to provide counsel in criminal cases for defendants who are unable to afford to pay their own attorneys, extending the identical requirement made on the federal government under the Sixth Amendment.”

The constitutional right to effective assistance of counsel to indigent defendants remains unmet, in the words of Stephen Bright, “No constitutional right is celebrated so much in the abstract and observed so little in reality as the right to counsel.” As Monroe H. Freedman, among others, has noted again and again, paltry compensation has failed to attract competent lawyers and court-appointed lawyers are frequently incompetent, more often than not valued by judges for their ability to “move the courts’ calendars quickly by entering hasty guilty pleas in virtually all cases. In those few cases the accused insists on his right to trial by jury, the trials typically move rapidly because the court-appointed lawyers generally file no motions, conduct no investigations, and do little to impede the speedy disposal of the case from charge, to guilty verdict, to imprisonment.”

A “background summary” of the case, courtesy of Street Law:

“Between midnight and 8:00 am on June 3, 1961, a burglary occurred at the Bay Harbor Pool Room in Panama City, Florida. Someone broke a window, smashed the cigarette machine and
jukebox, and stole money from both. Later that day, a witness reported that he had seen Clarence Earl Gideon in the poolroom at around 5:30 that morning. When Gideon was found nearby with a pint of wine and some change in his pockets, the police arrested him and charged him with breaking and entering.

Gideon was a semi-literate drifter who could not afford a lawyer, so at the trial, he asked the judge to appoint one for him. Gideon argued that the Court should do so because the Sixth Amendment says that everyone is entitled to a lawyer. The judge denied his request, ruling that the state did not have to pay a poor person’s legal defense unless he was charged with a capital crime or ‘special circumstances’ existed. Gideon was left to represent himself.

As might be expected, Gideon did a poor job of defending himself. He had done no preparation work before his trial; his choice of witnesses was unusual—for instance, he called police officers who arrested him to testify on his behalf, not having any reason to believe they would help his case. He had no experience in cross-examining a witness in order to impeach that person’s credibility, so his line of questioning was not as productive as a lawyer’s would have been.

Gideon was found guilty of breaking and entering and petty larceny, which was a felony. He was sentenced to five years in a Florida state prison, partly because of his prior criminal record. While in prison, he began studying law in the prison library, believing that his Sixth Amendment rights had been violated when he was denied a defense lawyer paid for by the State. His study of the law led him to file a petition for habeas corpus with the Supreme Court of Florida, which asked that he be freed because he had been imprisoned illegally. After the Supreme Court of Florida rejected his petition, he handwrote a petition for a writ of certiorari to the Supreme Court of the United States, asking that it hear his case. The Court allowed him to file it in forma pauperis, which meant that the Court would waive the fees generally associated with such a petition. Generally, the Court dismisses most of these petitions; Gideon’s was among those that it did not dismiss.

In state criminal trials, are indigent defendants entitled to a lawyer, even in noncapital cases? That was the question the Court agreed to decide when they accepted Gideon’s petition. It was not merely a question of whether Gideon had been treated fairly; the Court’s ruling would affect many other people who faced similar circumstances. In a previous decision, Betts v. Brady (1942), the Court had held that in state criminal trials, an indigent defendant must be
supplied with an attorney only in special circumstances, which included complexcharges and incompetence or illiteracy on the part of the defendant. Since Gideon had not claimed special circumstances, the Court would have to overturn Betts in order to rule in Gideon’s favor. (Florida’s state law provided indigent defendants with lawyers only in capital cases; many other states had laws providing lawyers to most or all indigent defendants.)”

From today’s Los Angeles Times: “Violating the Right to a Lawyer”

By Stephen B. Bright and Sia Sanneh

[….] “Guilty pleas account for about 95% of all criminal convictions. In many courts, poor people are processed through the courts without lawyers or moments after speaking for few minutes with lawyers they just met and will never see again. This is called ‘meet ‘em and plead ‘em’ or ‘McJustice.’

Fifty years ago this week, one of the Supreme Court’s most celebrated cases, Gideon vs. Wainwright, established the right of criminal defendants to have a lawyer. The cases above are stark examples of how that right is violated every day across the nation.

A 2004 American Bar Assn. study reached ‘the disturbing conclusion that thousands of persons are processed through America’s courts every year either with no lawyer at all or with a lawyer who does not have the time, resources or, in some cases, the inclination to provide effective representation.’ Since that study, the number of cases has increased, but the number of available lawyers has not. Many poor people are detained in jails after arrest without lawyers for weeks or months. This may cause them to lose their jobs and homes, even if they are eventually not convicted of anything. Even when there is some representation for the poor, the lawyers are often struggling to handle more cases than is humanly possible.

Most states, which are responsible for more than 95% of all criminal prosecutions, have treated the Gideon decision as an unfunded mandate to be resisted. They have little incentive to provide competent lawyers to represent the people they are trying to convict, fine, imprison or execute. Many focus on minimizing costs, awarding the defense of poor people to the lowest bidder, compensating lawyers at meager rates and underfunding public defender programs. This facilitates pleas, speeds up cases and heightens the chances of conviction for anyone accused of a crime.

The cost of disregarding the right to a lawyer is enormous. Innocent people are convicted while the perpetrators remain at large. Important issues, such as the system’s pervasive racism, are ignored. A justice system in which the key actors routinely ignore one of its most fundamental constitutional requirements lacks legitimacy and credibility.

Several things must be done to comply with the constitutional right to counsel and ensure fairness. Adequate funding is essential. One example of what states can accomplish with adequate funding is Colorado’s statewide defender system, in which lawyers are thoroughly trained and supervised and have reasonable workloads and access to investigators, interpreters, social workers and experts. Courts must enforce the right to counsel instead of being complicit in its denial. Trial judges must stop orchestrating ‘meet ‘em and plead ‘em’ processing of people, which involves little or no legal representation. Courts must be responsive to lawsuits challenging deficiencies in representation.

Prosecutors — the most powerful actors in the system — should not exploit the poor quality of defense representation as a strategy for winning cases, as some do. They should instead support efforts to improve it, as Atty. Gen. Eric H. Holder Jr. has done by pointing out the deficiencies in representation and urging reforms.

Finally, the legal profession, the media, law professors, law students and others must hold the system up to public examination until both the spirit and letter of the law in the Gideon ruling is upheld. People facing the loss of life or liberty are entitled to more than McJustice.”

(Stephen B. Bright teaches at Yale Law School and is president and senior Counsel of the Southern Center for Human Rights in Atlanta. Sia Sanneh is a senior fellow at Yale Law School and an attorney with the Equal Justice Initiative in Alabama.) A forthcoming essay from Bright and Sanneh: “Fifty Years of Defiance and Resistance after Gideon v. Wainwright.” 

Prior posts with direct or indirect relevance to the right to counsel:

“The War on the Indigent with the Sword and Shield of Neoliberal Commodification”

“When Innocent Clients Plead Guilty”

“Wrongful Convictions”

“American Violet: A Criminal Justice Story”     

“Gideon’s Trumpet Heard in New York”

Finally, see Monroe Freedman’s provocative article, “An Ethical Manifesto for Public Defenders,” Valparaiso University Law Review, Vol. 39, No. 4 (Summer 2005): 911-923.

Addenda: The virtual silence on this anniversary in the legal blogosphere (at least at the dozen or so law blogs I routinely visit) is disappointing and disconcerting. However, here are several items worth reading:

• Paul Butler, “Gideon’s Muted Trumpet” in The New York Times.
• Andrew Cohen, “So You Want to Learn More About the Gideon Case?,” The Atlantic, March 13, 2013.
• “Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel,” Report of the National Right to Counsel Committee, April 2009 (The Constitution Project)
• Pamela S. Karlan, “Gideon Turns Fifty,” in the Boston Review.
• From the Brennan Center for Justice, “The Right to Counsel 50 Years After Gideon: A Resource Page.”

A just published book: Karen Houppert, Chasing Gideon: The Elusive Quest for Poor People’s Justice (New York: The New Press, 2013). Our younger readers or novice students of the law should first read Anthony Lewis’s “warm, intimate and moving account of a lowly man’s case that became a Constitutional landmark” (Paul A. Freund): Gideon’s Trumpet (Random House, 1964).

St. Francis, Radical for Love

In today's world, there is perhaps no more familiar or more comforting saint than the medieval mendicant St. Francis of Assisi.  Catholics and non-Catholics alike hold him in reverence and awe.  What is it about the actual, historical St. Francis that drives such an enthusiastic response eight centuries after his death?  For surely there is not another saint in Christendom who commands such devotion.

In truth, few more radical individuals have ever walked the earth.  St. Francis, like no one before or since, captured the essence of what it meant to follow the example of Jesus Christ.  Jesus, of course, commanded the impossible.  He ordered his followers to love one another without limit or precondition.  Whatever stands in the way of our love must be removed.  If there is a boundary or barrier to be overcome, we must overcome it.  Sacrifice, always and everywhere, for the good of others.  Sacrifice, offered in full rejoicing at the opportunity to expend ourselves totally for our neighbor's well-being.  Jesus commanded and St. Francis, more than any other human being, attempted to fulfill this simple yet unachievable demand.

When St. Francis broke with his father, who had hoped he would enter the world of business and commerce, he stripped naked in the town square of Assisi, handing back his clothes to the befuddled older man.  When Brother Ruffino, of noble descent and one of Francis's first followers, hesitated to preach, Francis commanded him to preach naked.  Side-by-side before the assembled congregants, these two naked men denounced pride and pretense in the name of utter humility.  When you stand naked before God and man, after all, you kill the old self, the self-important vainglorious self, and become totally transparent to the world.

St. Francis preached to the birds, informing them of their beauty, reminding them that God had endowed them with wings and feathers, and the wondrous gift of flight.  In this small, strange gesture, St. Francis recalled for his audience the miracles of everyday life.  Even birds are not commonplace.  They are gifted with abilities no human can ever hope to share.  On other occasions, he preached to fish, to rabbits and even tamed a wolf threatening the town of Gubbio.

In all of this, Francis taught that no part of God's creation is ordinary.  Everything, from the tiniest microbe to the largest galactic structure, is unique and special.  God is not some distant judge, thundering "thou-shalt-nots" from on high, but is woven into the very fabric of the world around us.  People are quite right to see St. Francis as a nature mystic, as a defender of the natural world, as a patron saint of the environment.  He is all of that.  But he is so much more besides.  Everything in God's creation is to be respected because everything is worthy of our love.  God, after all, is love without limits and God created this world and ordered us to shepherd it safely home.

St. Francis demanded of his followers an absolute and unconditional renunciation of all property.  Christ was poor.  He relied on the kindness of others to carry on his mission.  Like the lillies of the field, he did not concern himself with what he was to eat, or drink, or where he was to sleep for the night.  And neither would Francis' disciples.

This teaching was radically destabilizing in its application.  Francis' followers would spend the next two centuries threatening papal power and authority with their unyielding insistence on apostolic poverty.  Umberto Eco set that improbable medieval murder mystery, "The Name of the Rose," in the midst of these controversies.  But the implications for our time are clear:  Material prosperity represents, in some measure, a compromise with the things of this world.  All preoccupation with material wealth is by definition something we hold back, something we keep in reserve.  We are not full or complete in our love, in our trust, if we withhold anything from God or the love we must show others.

St. Francis kissed lepers. He embraced them. He recognized their humanity beneath their scabbing skin and benumbed limbs.  Lepers were the most marginal members of medieval life.  Feared and despised, they were forced to inhabit encampments on the edge of civilization, or were confined in leprosaria, or even killed for sport or pleasure.

In reaching out to the marginal, St. Francis imitated Jesus.  Jesus did not come to reassure the high and mighty of their rightful place in society.  He came to comfort the afflicted.  He brought hope to lepers.  He numbered tax collectors among his followers.  He ministered to prostitutes.  In a society dominated by male hierarchy, he spoke directly to women.  There was Mary Magdalen, of course, and Martha and Mary, and all the many women he healed.  He conversed with a Samaritan woman at Jacob's well.  She had been married five times and now lived with a man not her husband.  Jesus promised her the sweet, sweet water of eternal life.

I will confess I never thought it possible a pope would take the name Francis.  The pope, after all, represents the institutional church, the church of structure, of hierarchy and discipline, the church of respectability and good order.  St. Francis' whole life was led in tension with all of these aspects of what it means to be church.  He subverted hierarchy, he broke down barriers, he insisted by deed and word to demonstrate the limitless law of love.  He was Jesus, after all, to Dostoyevsky's Grand Inquisitor.

What can we expect from a pope who has chosen to be known by this most challenging of all Christian saints?  I share Joseph Amodeo's hope that Pope Francis might reach out to those most marginalized and mistreated Christians, gay Catholics (see "Could Pope Francis Be the Gay Community's Greatest Hope?").  I think that Frank Kirkpatrick is right to expect Pope Francis to challenge the vast economic injustices of our age (see "What's Behind the Pope's Name").  For my part, I was a guest on several radio call-in shows where I was struck by the number of callers who identified themselves as lapsed Catholics willing to give the Church a second look based on little more than the choice of papal name.

But papal names also become standards by which we judge the success or failure of pontificates.  Can Pope Francis practice the humility and transparency of St. Francis?  Can he reduce the trappings of a papal monarchy grown stiff with rigor mortis?  Can he confront and transform an economic order as unequal and unjust as any since the industrial revolution?  Can he reconcile the marginalized?  Can he, in short, practice the love without limits that Jesus asked of his followers and that St. Francis sought to emulate in all things?

Cross-posted at The Huffington Post: http://www.huffingtonpost.com/charles-j-reid-jr/st-francis-radical-for-love_b_2887699.html

The Church & St. Francis

At the New York Times, Timothy Egan writes:

“Though Francis of Assisi is the most popular saint in a long history of tortured bodies and souls, the fact that no pope until Cardinal Jorge Bergoglio would take his name says a lot about the timeless shadow from the 12th century to the 21st. The legacy of the first Francis is almost too much to bear.”

And, at the National Review, the editors engage in what John Holbo at Crooked Timber terms “preemptive damage control,” anxious to inform their readers that the new Roman pontiff’s understanding “of poverty as a social ill should not be misconstrued as sympathy for statist solutions to it or, indeed, as support for any determinate political program.”                                 

In light of the above, we might consider the fate of Liberation Theology and theologians like Leonardo Boff in the recent history of the Church. Boff, author of a biography of St. Francis (1981, in English, 1982), was of course one of those responsible for Liberation Theology and praxis[1] of the sort Ratzinger was instrumental in silencing in his former role as Prefect of the Congregation for the Doctrine of the Faith. Boff writes of the saint’s life and faith as linked
to “leaving imperialism” and the “integral liberation of the oppressed.” Boff tells Catholics that “Poverty is not only a problem of moral conscience; it is fundamentally a political problem.” He reminds them that “Today’s dominant classes, successors to the slave owners as well as the slave traders (English, Portuguese, Dutch, and North American), have inherited a profound scorn for the poor. They consider them to be socially disqualified [think of the reaction of actual and aspiring neo-liberal elites to the Bolivarian revolution]; they avoid contact with them, going around them, insensitive to their misery.” The Church has often had a difficult time understanding with Francis that “being poor” means no only the “voluntary” sort motivated by vicarious identity and solidarity, but rather the poor experienced by the poor themselves, which is the bitter “fruit of impoverishing and exploitative mechanisms. To accept poverty in solidarity with the poor implies opting for social justice, committing oneself to the poor in the integral liberation of all for a more just and fraternal society.”

Catholics and their Church are often blinded to the fact that “we are living in a society of classes with antagonistic interests. Objectively, the poor are poor because the way society is organized, since they have the strength to work but not the capital, they are placed on the margin.” Boff explains to his readers the categorical need for the “structural change of society” [hard to imagine that without State direction or support or sans any ‘determinate political program’]. For Boff, the Church must come out in full support of “movements that are born of the base–free unions, people’s associations” that defend those without power, which includes their culture and rights. Many Catholics and their Church are loath to admit freedom for the poor involves struggle, what Boff understood as nonviolent revolution, not trickle-down reform, and such “Freedom is never freely granted; it must be attained in an arduous process of freedom.” As Boff writes, “Everything in Francis invites practice: exire de saeculo, leaving the imperial system in an alternative act that makes more real devotion toward others, more gentleness with the poor, and greater respect for nature.” The “spirit and way of life” of Francis of Assisi is no mere “formula, idea, or ideal,” but made manifest in social and political practice, individually and collectively.

Read too the works of the late Penny Lernoux (1940–1989) to see why there has never been a pope to take the name of Francis of Assisi. And take a look at the comparative significance of The Catholic Worker movement in Catholicism generally to begin to see why the faith of Francis has been and remains a considerable distance from the Church.

[1] See, for example, Phillip Berryman’s classic introduction, Liberation Theology… (Pantheon Books, 1987). Liberation theology and praxis was able to critically absorb analytical insights from the Marxist tradition, as well as ideas and methods from such individuals as the philosopher Enrique Dussel, and Paulo Freire, a philosopher of education.

Further Reading:

• Barbé, Dominique. Grace and Power: Base Communities and Nonviolence in Brazil. Maryknoll, NY: Orbis Books, 1987.
• Barbé, Dominique. A Theology of Conflict and Other Writings on Nonviolence. Maryknoll, NY: Orbis Books, 1989.
• Berrigan, Daniel. The Steadfastness of the Saints: A Journey of Peace and War in Central and North America. Maryknoll, NY: Orbis Books, 1985.
• Boff, Leonardo. St. Francis: A Model for Human Liberation. New York: Crossroad, 1984.
• Boff, Leonardo and Clodovis Boff. Introducing Liberation Theology. Maryknoll, NY: Oribis Books, 1987.
• Brown, Robert McAfee. Liberation Theology: An Introductory Guide. Louisville, KY: Westminster/John Knox Press, 1993.
• Coles, Robert. Dorothy Day: A Radical Devotion. Reading, MA: Addison-Wesley, 1987.
• Coles, Robert. A Spectacle Unto the World: The Catholic Worker Movement. New York: Viking, 1973.
• Coy, Patrick, ed. A Revolution of the Heart: Essays on the Catholic Worker. Philadelphia, PA: Temple University Press, 1988.
• Douglass, James W. The Nonviolent Cross: A Theology of Revolution and Peace. New York: Macmillan, 1968.
• Douglass, James W. Resistance and Contemplation: The Way of Liberation. Garden City, NY: Doubleday, 1972.
• Dussel, Enrique. A History of the Church in Latin America: Colonialism to Liberation (1492-1979). Grand Rapids, MI: Wm. B. Eerdmans, 1981.
• Ellis, Marc. A Year at the Catholic Worker. New York: Paulist Press, 1979.
• Ellis, Marc. Peter Maurin: Prophet in the Twentieth Century. New York: Paulist Press, 1981.
• Ellsberg, Robert, ed. By Little and By Little: The Selected Writings of Dorothy Day. New York: Alfred A. Knopf, 1983.
• Freire, Paulo. Pedagogy of the Oppressed. New York: Herder and Herder, 1972.
• Gutiérrez, Gustavo (Caridad Inda and John Eagleson, tr.). A Theory of Liberation: History, Politics, and Salvation. Maryknoll, NY: Orbis Books, 1973.
• Lernoux, Penny. The Cry of the People: The Struggle for Human Rights in Latin America—The Catholic Church in Conflict with U.S. Policy. New York: Penguin Books, 1982.
• Míguez Bonino, José. Toward a Christian Political Ethics. Philadelphia, PA: Fortress Press, 1983.
• Musto, Ronald G. The Catholic Peace Tradition. Maryknoll, NY: Orbis Books, 1986.
• O’Connor, June E. The Moral Vision of Dorothy Day: A Feminist Perspective. New York: Crossroad, 1991.
• Roberts, Nancy L. Dorothy Day and the Catholic Worker. Albany, NY: State University of New York Press, 1984.
• Rowland, Christopher, ed. The Cambridge Companion to Liberation Theology. New York: Cambridge University Press, 2007.
• Smith, Christian. The Emergence of Liberation Theology: Radical Religion and Social Movement Theory. Chicago, IL: University of Chicago Press, 1991.

Addendum: For the Church’s position on the indispensable and urgent role of the State with regard to the poor and vulnerable, please see here. As is noted there, “when there is  question of defending the rights of  individuals, the poor and badly off have a  claim to especial  consideration. The richer class have many ways of shielding  themselves, and stand less in need of help from the State; whereas the mass of  the poor have no resources of their own to fall back upon, and must chiefly depend upon the assistance of the State. [....] The  obligation to provide justice for all means that the poor have the single most  urgent economic claim on the conscience of the nation. [....] The needs of the poor take  priority over the desires of the rich;  the rights of workers over the  maximization of profits; the  preservation of the environment over uncontrolled  industrial expansion; the production to meet social needs over production for  military  purposes. [....] The obligation to provide justice for all means that the poor have  the single most urgent economic claim on the conscience of the nation.” The Democrats for some time now have given rhetorical (in campaigns) and strategic priority (in public policy) to appeals to the middle class and their interests, rarely giving voice to the needs of the poor, a lamentable development for a party that once was conspicuous for its role as a defender of the downtrodden. This is yet further evidence of how the spectrum of political discourse has clearly foreshortened in deference to the Right’s ideology.

Fat Pope? Thin Pope? Conservative Pope? Progressive?

    There is an old saying, a fat pope follows a thin pope.  What is meant by this saying is that papal styles of governance change.  A pope dedicated to enforcing doctrinal orthodoxy is succeeded by a pope concerned about speaking to the world.  A pope preoccupied with the great affairs of state is succeeded by a pope focused on tending the garden of the Church.

    We saw this phenomenon play out in the contrasts between Popes John Paul II and Benedict XVI.  John Paul II was the man of great and bold gestures.  A theatrical pope, a pope who knew how to capture and hold the public imagination.  And he was followed by a cerebral pope, an intellectual, a pope more at home writing learned books about Jesus and adorning his weekly homilies with wonderful lessons in Church history.

    How will this phenomenon play out in this week's conclave?  I am willing to surmise that we will see a pope elected who will look toward more progressive models of church governance.  Both John Paul II and Benedict relied heavily on the curia -- the Church's top-heavy, secretive bureaucracy for much of the day-to-day running of the Church.  I think we may see a pope willing to alter this governing model.  I think as well we may see a pope less concerned with rooting out perceived doctrinal aberrations in the name of orthodoxy and tradition.  We might instead find ourselves with a pope open to experimentation.  We could see a change of tone toward homosexuals.  We could see a pope encourage rather than dampen theological speculation on all sorts of interesting questions.  We might, in other words, see a very different pope from what we have experienced in recent
decades.

Anxiety in the College of Cardinals?

    When Keith Cardinal O'Brien was forced to resign at the end of February because of sexual misconduct involving the Cardinal's unwanted advances towards the priests of his Archdiocese, the anxiety level among the cardinals must have risen a notch or two. Cardinal O'Brien was not an obscure back-bencher.  He had in fact gained some prominence on the world stage.  He made progressives happy by suggesting that clerical celibacy needed a second look.  And he delighted social conservatives with his vigorous attacks on homosexuality. All the while, it seems, he kept effectively concealed his own indiscretions -- which, the New York Times has pointed out, may involve members of his clergy but, given the sweeping nature of his admission, could involve instances of misconduct involving others as well.  See John F. Burns, "Following Resignation, Top British Cardinal Acknowledges Sexual Misconduct," New York Times, March 3, 2013.

          As the cardinals size up one another as papabile -- "papal material" -- they must now ask themselves, "are there any skeletons in the closet?"  Have any of the cardinals concealed pedophilia on the part of their priests?  Are there other shoes yet to drop?  Or, have any of the cardinals behaved in indiscreet ways themselves?  These questions would have been nearly unthinkable before l'affaire O'Brien.  But every cardinal of voting age must now be asking themselves precisely these questions. And this must lead to very anxious moments.

The Next Pope: Why Non-Catholics Should Care

Jonathan Sacks, the Chief Rabbi of the United Kingdom, was once asked what he thought about the Anglican Church being the Established Church of England. He  responded that an established church was a good thing because it emphasized the importance of spirituality in our lives.

So too, whether we are Catholic or not, religious or not, we should care about who is selected as the next Pope. The Pope has the platform to be a strong voice for spirituality against materialism, for care of others as opposed to self-serving egoism, for peace as opposed to war, for harmony with and stewardship of the earth as opposed to environmental degradation, for gratitude of creation as opposed to unremitting despair.

Of course, the next Pope will have to do much to show that the Church is serious about the sex scandal. Eliminating mandatory celibacy would address the lack of access to the sacraments, as Charles Reid suggests here, and it would be widely perceived as addressing the sex scandal (though it would not be presented in that way). My guess is that mandatory celibacy will not be eliminated in the short run and that the new Pope is unlikely to retreat from the traditional outmoded teachings of the Church on a variety of sexual issues.

My main hope for activity of the new Pope is that he place emphasis not on the hot button sexual issues, but on a problem that unites religious leaders, namely concern for the poor.  Concern for the poor is at the heart of the Gospel, but in our country populated with “Christian” political leaders, concern for the poor is conspicuously shallow. The Republicans seem to think the poor exist because they are shiftless and lazy. Perhaps more disturbing, the Democrats do not mention the poor because the votes aren’t there. Lyndon Johnson’s war on poverty is a war our citizens do not want to fight. If the Gospel teaches that we are here to serve others, the very existence of the poor is a striking example of injustice and institutional sin, of how far we as a society have fallen short.

My hope for the new Pope (and Michael Sean Winters expresses the same view in today’s Wall Street Journal) is that the Pope on his world tours include visits to sites where the poor are. Loaves and Fishes, a community kitchen for the poor (though all are welcome) in Ithaca would happily welcome the Pope and, if he said Mass, it would be well attended by Catholics and non-Catholics alike. I suspect the new Pope will not be coming to Ithaca, but there are community kitchens and shelters and medical interventions and slums all over the world. The Pope could do much to dramatize the existence of the poor and more important to humanize them as well.

Michael Harrington once aroused the conscience of Americans about poverty with his book The Other America. An effort in the direction by the Pope would do even more to help the poor; it would help the positive Christian image of the Church (selling off the rich treasures in the Vatican museum could help as well); and it would send a strong message (in conjunction with other activities and addresses of the Pope) that the hedonistic, materialistic trappings of the modern world as we know it in the West are a distraction from the real meaning of our lives.

Hugo Chávez and Chavismo: The Venezuelan Transcendence of Neo-Liberalism

All too often the labels and categories routinely invoked for both descriptive and analytical political discourse in public fora bespeak the noxious effects of intellectual lethargy, ideological calcification, and even the crassness of black-and-white thinking. In part, this reflects the cumulative consequences of a journalistic diet of mass media junk food. This unhealthy dietary regimen has its origins in the mass media’s analogue to factory farming, the products of a “commercial media juggernaut” at once constrained and motivated by capitalist imperatives as politically sanctioned by the most powerful nation-states and enshrined in the globalization of neoliberalism.[1] Perhaps most of these labels and categories are indispensable, with a rightful place in our political language, particularly when discretely or properly applied, but on occasion they prevent or obscure our appreciation of history, of novel socio-economic and political ideas and movements, of the “messiness” or complexity of social reality, in the domestic case or, especially in this instance, in understanding events abroad.  

For a host of reasons we won’t address here, contemporary commercial mass media structurally facilitates and encourages such lethargy, calcification and simplistic thinking, meaning that this need not be the direct result of the manifest individual or collective intentions of editors, and journalists, and even its managers and publishers, but the factors and variables at play in establishing and maintaining this structure assure a comparatively weak and democratically diminished Fourth Estate. For instance, Robert McChesney has noted the corresponding “decline and marginalization of…public service values,”[2] conspicuously evidenced in the precipitous decline of investigative journalism, hence the effort to address this void by an Internet-based non-profit journalistic endeavor like ProPublica. At its website, ProPublica proclaims that

Investigative journalism is at risk. Many news organizations have increasingly come to see it as a luxury. Today’s investigative reporters lack resources: Time and budget constraints are curbing the ability of journalists not specifically designated ‘investigative’ to do this kind of reporting in addition to their regular beats. New models are, therefore, necessary to carry forward some of the great work of journalism in the public interest that is such an integral part of self-government, and thus an important bulwark of our democracy.

It is true that the number and variety of publishing platforms are exploding in the Internet age. But very few of these entities are engaged in original reporting. In short, we face a situation in which sources of opinion are proliferating, but sources of facts on which those opinions are based are shrinking. The former phenomenon is almost certainly, on balance, a societal good; the latter is surely a problem.

More than any other journalistic form, investigative journalism can require a great deal of time and labor to do well—and because the ‘prospecting’ necessary for such stories inevitably yields substantial number of ‘dry holes,’ i.e. stories that seem promising at first, but ultimately prove either less interesting or important than first thought, or even simply untrue and thus unpublishable. Given these realities, many news organizations have increasingly come to see investigative journalism as a luxury that can be put aside in tough economic times. Moreover, at many media institutions, time and budget constraints are curbing the once significant ability of journalists not specifically designated ‘investigative’ to do this kind of reporting in addition to handling their regular beats.[3]

It’s been argued that the problem is far greater than that having to do solely with “investigative journalism, ” encompassing most of what generally falls under the heading of “news gathering” and “news reporting” in this commercial media juggernaut. Media ownership concentration[4] is one source of key structural factors and variables responsible for either causing or accelerating deleterious trends in this regard, making mincemeat of our designs and hopes for a media fashioned to serve the means and purposes of a democratic polity, one designed to address, in other words, the nutritional informational and knowledge needs of a democratic civil society struggling to free itself from servile and obsequious relations to the aristocracy of Capital and the dictates of the National Security State.

All of this by way of setting the table for an attempt to make sense of the Venezuelan presidency (1999-2013) and legacy—largely but not solely as Chavismo—of Hugo Chávez (28 July 1954 – 5 March 2013).[5]  Two of the articles we’ll mention could be considered exceptions to the generalizations above: perhaps the foremost being the New York Times’ decision to publish a cogent, fitting and fair memorial op-ed by Luiz Inácio Lula de Silva, the former president of Brazil (2003-2010), and a short Los Angeles Times article on why Venezuela’s poor came to discover ample reason to demonstrate their loyal support and affection for a man whom pundits, intellectuals, and politicians of the privileged caricatured and derisively dismissed with a perfervid rhetoric that reveled in ritualistic references to a “tin pot caudillo,” a “conspiracy theorist,” a “megalomaniac,” a demagogic buffoon of authoritarian manner if not dictatorial pretension. Whatever the grains of truth found in such characterizations, they serve in the end to ideologically obscure and distort attempts to accurately assess the socioeconomic and political legacy of Chávez and Chavismo in Venezuela, including its possible enduring contribution to Leftist politics and movements throughout Latin America. The reality of that legacy is rather more complex and perhaps a bit fuzzy, and it is undoubtedly far more interesting than suggested by such rhetoric.

No less than Christopher Hitchens indulged in the assumptions and premises of this discourse, thereby precluding a full appreciation of the fact that, “especially in the areas of public health, housing and education, [Chávez] succeeded in improving the standard of living of tens of millions of Venezuelans,”[6] or that his “government reduced extreme poverty by 70 percent,”[7] or that (while not entirely successful) imaginative and courageous experiments were initiated by the State in the form of Community Councils constituted “to oversee local social-welfare projects…[that] quickly turned into sites of real democratic debate, electing delegates and empowering people who previously didn’t have any say over the decisions that structured their lives.”[8] Hitchens preferred instead to draw our attention elsewhere, homing in on the Venezuelan president’s putative “politicized necrophilia” (with regard to Simón Bolívar), serving his readers the journalistic equivalent of the social class and status converse of voyeuristic and vicarious slumming, narrating the juicy details of his up-close-and-personal verification of anecdotal evidence that “[Chávez] does have an idiotic weakness for spells and incantations, as well as many of the symptoms of paranoia and megalomania.”[9] Would it have been unreasonable to expect Hitchens to engage his journalistic prowess on behalf of old-fashioned slumming so as to give voice to the Venezuelan poor, as did the writers in our LA Times piece:  

Maria Eugenia Mendoza, a 55-year-old special education teacher, held aloft a Chavez poster Wednesday afternoon and sported, like so many others, a bright red T-shirt, the sartorial symbol of Chavez’s socialist project. Before Chavez, she said, the children she works with had been marginalized. Their classroom was a run-down warehouse. Their school supplies were scant. ‘Poor, handicapped students were forgotten until he came to power. They suffered from a total lack of focus by the government,’ said Mendoza, a teacher for 25 years. ‘Under Chavez there was a complete change. We now have a new school, curriculum, diagnostic equipment, trips and even sports programs. ‘He gave us hope,’ she said. ‘That’s why I am a Chavista.’[10]

Had the good doctor Hitchens resisted the temptation to indulge in amateur diagnosis under the cover of tabloid journalism, he might have informed his readers that Chávez “filled bellies, stocked classrooms, and tended to the ill,”[11] in spite of his all-too-human shortcomings.

In The Nation, NACLA (North American Congress on Latin America) executive editor Greg Grandin shares another example of recalcitrant ideological obscurantism entrenched across the prevailing political spectrum of Mirabeau’s “geography of the Assembly:”

Latin American populists, from Argentina’s Juan Perón to, most recently, Chávez, have long served as characters in a story the US tells about itself, reaffirming the maturity of its electorate and the moderation of its political culture. There are at most eleven political prisoners in Venezuela, and that’s taking the opposition’s broad definition of the term, which includes individuals who worked to overthrow the government in 2002, and yet it is not just the right in this country who regularly compared Chávez to the worst mass murderers and dictators in history. New Yorker critic Alex Ross, in an essay published a few years back celebrating the wunderkind Venezuelan conductor of the Los Angeles Philharmonic, Gustavo Dudamel, fretted about enjoying the fruits of Venezuela’s much-lauded government-funded system of music training: ‘Stalin, too, was a great believer in music for the people.’[12]

Bhaskar Sunkara, a senior editor at In These Times and the talented and articulate founding editor of Jacobin magazine, one of the premier periodicals on the Left, wrote a piece last year, “Postmodern Perón: Hugo Chávez and the new face of Latin American populism,”[13] that properly located Chavismo within the history of the Left in Latin America and in particular within the region’s well known tradition of populism.[14] Sunkara rightly describes the electoral victory that brought Chávez’s fourth term as Venezuela’s president—a term diminished by his illness and shortened by his death—as a “victory for progressive forces in his country,” a significant cause for celebration even if the Bolivarian Revolution[15] is, at turns, erratic and contradictory, “both authoritarian and democratic, demagogic and participatory.”

With Sunkara, we can readily concede that “some of the criticism of Chávez is justified,” which should surprise no one. At the same time, it is “undeniable” yet eminently understandable “that facing hostility in the media and an entrenched elite, the president at times used executive power to circumvent political opposition.” And while Chávez was clearly a leftwing populist in the Latin American tradition, he was “one distinctly more radical—if less predictable—than those who came before him.” If, after Hitchens, we find Chávez exhibited “symptoms” of paranoia, we might forgive him, fully aware that the U.S. backed the coup d’état of April 11, 2002 which “appeared to spell the end of the Chávez moment.” In the words of Sunkara,

The hubris of the reactionaries was astounding, and mainstream Venezuelan media outlets, complicit to varying degrees, at the very least could not hide their delight. Pedro Carmona, president of the Venezuelan Federation of Chambers of Commerce, was installed as interim president, and the National Assembly, Supreme Court and 1999 Constitution were dissolved to rousing applause. The United States and Spain rushed to establish relations with the new government. The event, framed in Orwellian terms by much of the Latin American Right, was a ‘triumph for democracy.’ But the opposition underestimated the support Chávez still had among the Venezuelan poor. A spontaneous mass uprising by hundreds of thousands of people outside the Miraflores Palace and the revolt of Chavista officers within turned the table on the plotters. Within 47 hours the government was restored, but extra-parliamentary resistance to the regime continued.[16]

   The palpable fear and hostility one senses from the usual strata and quarters in this country and in parts of Latin America is irrational to the extent it arises from Chávez’s (late-blooming) conversion to socialism, which found him “more committed to redistributing wealth and power than just about any Latin American who came before him” (Sunkara). Chávez, as Sunkara well explains, was neither a despot nor a saint, as sober assessments by Sunkara, Lula, and Grandin, among others, attest:

‘Chavez was more than just an image to us. He was a very human figure who worked to improve our lives,’ said information technology engineer Vicente Rodriguez, 47. ‘Before, I couldn’t have cared less about politics, but he got me involved and interested in working for the common good.’ Rodriguez said he donated part of his time as an adult-education consultant. [….]

‘The poor were the forgotten ones before Chavez took office. Now we are visible, and the government has given us power we never had before,’ said Francisco Umbria, a retired municipal employee who stood in the massive crowd, waiting for the casket to roll by. ‘Only people who are forgotten die, and Chavez will never be forgotten, not for 100 years.’[17]

Notes:

[1] Some of the relevant literature can be gleaned from the compilation I made here: Mass Media: Politics, Political Economy, & Law—A Select Bibliography.

[2] Robert W. McChesney, Rich Media, Poor Democracy: Communication Politics in Dubious Times (The New Press, 2000).

[3] http://www.propublica.org/about/ .

[4] There are several works one might cite here but see, for example, C. Edwin Baker’s Media Concentration and Democracy: Why Ownership Matters (Cambridge University Press, 2007).

[5] A rather critical assessment: Tillman Clark, “Chavismo: The Re-Emergence of Progressive Populism in Venezuela,” (June 12, 2010) at Venezuelanalysis.com. At this site you’ll also find a wide array of articles (‘opinion & analysis’) discussing the life and legacy of Chávez. See too, Josh Watts, “The British Press on the Death of Chávez,” at the New Left Project, and from FAIR (Fairness & Accuracy in Reporting), “In Death as in Life, Chávez Target of Media Scorn.”

[6] Luiz Inácio Lula de Silva, “Latin America after Chávez,” The New York Times (March 6, 2013). Available: http://www.nytimes.com/2013/03/07/opinion/latin-america-after-chavez.html?hp&_r=1& . 

[7] Bhaskar Sunkara, “Chávez: Despot or Saint?,” VICE (no date), available: http://www.vice.com/read/chavez-despot-or-saint . 

[8] Ibid.

[9] Christopher Hitchens, “Hugo Boss,” Slate (posted March 5, 2013, originally written in 2010). Available: http://www.slate.com/articles/news_and_politics/fighting_words/2010/08/hugo_boss.single.html .

[10] “Among Venezuela’s poor, Hugo Chávez ‘will never be forgotten,’” Los Angeles Times (March 6, 2013), available: http://articles.latimes.com/2013/mar/06/world/la-fg-venezuela-mourners 20130307.

[11] Ibid.

[12] Greg Grandin, “On the Legacy of Hugo Chávez,” The Nation (March 5, 2013), Available: http://www.thenation.com/article/173212/legacy-hugo-chavez# .

[13] Bhaskar Sunkara, “Postmodern Perón: Hugo Chávez and the new face of Latin American populism,” In These Times (online) (October 10, 2012), available: http://inthesetimes.com/article/13983/hugo_chavez_postmodern_peron/ .

[14] As Jorge E. Castañeda noted in his classic study, Utopia Unarmed: The Latin American Left after the Cold War (Alfred A. Knopf, 1993), “There is an abundance of literature on populism in Latin America.” Among the works in English listed as “most frequently quoted:” Torcuato di Tella, “Populism and Reform in Latin America,” in Claudio Veliz, ed., Obstacles to Change in Latin America (Oxford University Press, 1965), Ghita Ionescu and Ernest Gellner, Populism: Its Meaning and National Characteristics (Weidenfeld and Nicolson, 1969), and Paul W. Drake, Socialism and Populism in Chile, 1932-52 (University of Illinois Press, 1978). See too two titles edited by Michael L. Conniff: Latin American Populism in Comparative Perspective (University of New Mexico Press, 1982) and Populism in Latin America (University of Alabama Press, 1999), as well as Rudiger Dornbusch and Sebastian Edwards, eds., The Macroeconomics of Populism (University of Chicago Press, 1991). For a more recent collection of titles, see David Leaman’s review essay, “Changing Faces of Populism in Latin America: Masks, Makeovers, and Enduring Features,” Latin American Research Review, Vol. 39, No. 3 (October 2004): 312-326, available: http://lasa 4.univ.pitt.edu/LARR/prot/fulltext/vol39no3/Leaman.pdf. Finally, see Anastasia Moloney’s essay, “The Challenge of South America’s Populist Left,” World Politics Review (12 January 2009): http://www.worldpoliticsreview.com/articles/3146/the-challenge-of-south-americas-populist-left .

[15] See, for example, Iain Bruce, The Real Venezuela: Making Socialism in the 21st Century (Pluto Press, 2008), Gregory Wilpert, Changing Venezuela by Taking Power: The History and Policies of the Chávez Government (Verso, 2006), Carlos Martinez, Michael Fox, and JoJo Farell, eds., Venezuela Speaks! Voices from the Grassroots (PM Press, 2010), and George Ciccariello-Maher, We Created Him: A People’s History of the Venezuelan Revolution (Duke University Press, 2013).

[16] See supra note 13.

[17] See supra note 10.

Addenda:  I just finished reading a concise, incisive, historically sensitive and politically astute account of the accomplishments and the difficulties faced by the Bolivarian revolution in Venezuela with regard to its constitution, urban/rural issues, political leadership, poverty, democratic participation, cultural context, and the like, in Vijay Prashad’s indispensable volume, The Poorer Nations: A Possible History of the Global South (Verso: 2012): 258-278.

See too: “50 Truths about Hugo Chavez and the Bolivarian Revolution.” Indisputably remarkable.

Can Any Good Come of It?

We are not moving gently or confidently toward the next conclave.  We are staggering toward it.  The worldwide Catholic Church, in just the last few weeks, has had to confront some truly ugly scandals.

Consider: In late January, the new Archbishop of Los Angeles, Jose Gomez, had to order his predecessor, Roger Cardinal Mahony, to cease public ministry following the release of thousands of pages of personnel files detailing the Cardinal's role in the cover-up of priestly molestation cases going back to the 1980s. Over the vigorous objections of Los Angeles' Catholics, Mahony insists on voting in the forthcoming conclave.  Then, on Feb. 22, Cardinal Keith O'Brien, the Archbishop of St. Andrews and Edinburgh and the only British cardinal of voting age, resigned from office and indicated that he had no plans to vote in the conclave.  His decision followed complaints made by several priests that the Cardinal had made unwanted sexual advances towards them.  Earlier in February, the Italian newspaper La Repubblica, published the story that Pope Benedict's resignation was finally forced by a report made by three trusted cardinals detailing acts of sexual misconduct by Vatican priests.  The report, whose contents remain unknown even though its existence has been more or less confirmed, will be delivered to the new pope for, it is hoped, swift action.

Can any good come of this?  It is too much to expect sweeping reforms.  Women priests, for instance, are simply not in the cards.  Still, the situation facing the Church is sufficiently grave that we are entitled to hope for some dramatic actions.  The Church -- by which I mean not Catholics alone but all Christians -- can only pray that at least some of the following steps are taken:

1. The Church's government must become less monarchical.

Such a move would be in keeping with the progress of Church history since the latter 19th century.  Prior to 1870, the pope was both the spiritual head of the worldwide Catholic Church and the temporal ruler of a large swatch of central Italy (the papal states). With the reunification of Italy in 1870, the papacy's temporal rule was reduced to Vatican City.

Although the loss of the papal states was seen at the time as a transcendent defeat for the Church, it actually proved an incalculable blessing.  Stripped of the exigencies of running a small nation-state, a series of far-sighted popes -- Leo XIII, Pius XI, John XXIII, John Paul II and others -- refashioned the papacy into a conscience for the world.  The social teaching that these great moral voices articulated helped form the bedrock of the Christian Democracy movement in Europe and Latin America and still furnishes a powerful tool for analyzing the justice or injustice of public policy across the globe.

Recent popes have been less inclined to use the outward symbols of monarchy: No pope since Paul VI has worn the triple tiara and no pope since John Paul I has used the sedia gestatoria, the portable papal throne.

But these are mere outward trappings.  We can hope that a new pope reforms the inward sense of entitlement that comes from monarchy.  A new pontiff must act in imitation of that very humble, very human, very fallible rock upon whom the Church was built, St. Peter.  Yes, the Church has its own legal order and, yes, the Church must enjoy a proper independence from the State.  But crimes against children, the sexual violation of the innocents, must be reported to secular authorities.  Where such wrong-doing is concerned, there is no room for a monarchical sense of privilege.

2. The Church must become more transparent.

The pedophilia crisis has become a metastasizing cancer precisely because from the outset the Church has not been transparent.  Rather than confronting pedophile priests, rather than reporting their transgressions to police, church leaders equivocated and covered-up.  It is certainly true that canon law hugely prizes the reputational interests of individuals.  But the right to a good name should not be an excuse for blocking cooperation with civil authorities where crimes have been committed.

It is the failure to act transparently that has led ordinary Catholics to ask, "Will we ever get this crisis behind us?"  Ordinary Catholics are the ones paying the settlement costs and the attorneys' fees.  Ordinary Catholics have a right to expect church leaders to behave appropriately and obey reporting statutes.  While it surely must be a sensitive document, the new pontiff would set a good example if he released the report on the misconduct of Vatican priests that has been presented to Pope Benedict.  Yes, the seal of confession must be respected.  But with that exception acknowledged, not only must the new pontiff clean house, he must be seen to be cleaning house.

3. The new pontiff must creatively address the changes that are reshaping the world.

Perhaps a new ecumenical council is warranted.  It would not be too soon.  In that great creative period of Church history, the high middle ages, seven ecumenical councils occurred within a span of 190 years (a frequency greater than one every 30 years).  Vatican I took place in 1870.  Vatican II ran from 1962 to 1965.  We are now half a century removed from the Second Vatican Council.

A new council could be a tremendous tool for re-energizing Catholicism.  Whatever else it does, it must address the transforming events occurring in the West.  On the one hand, atheism has made a comfortable home in the West.  It is an atheism, furthermore, with a respectable, honorable intellectual pedigree.  Modern atheists look at the material world surrounding them, they grasp the vastness of the cosmos and the inevitability of natural forces, they comprehend quantum mechanics and the general and special theories of relativity, and they see no room for God in their picture of the universe.  They view the Bible quaintly, a collection of myths, not unlike the Norse sagas or the Egyptian Book of the Dead.  A new Church council needs to establish a dialogue with the scientists and reconcile anew faith and reason.

And on the other hand, we see the rise of the "nones."  It is a mistake to criticize or condemn the spiritual richness of these seekers after understanding.  The Church must rather look at the nones as an eclectic, creative force, an expression of the native, inborn impulse of women and men everywhere to explore the spiritual dimension of human existence.

Perhaps a new council will enrich Catholic culture.  A half-century ago, Flannery O'Connor could employ the tools of modern fiction, telling stories of human transformation that were Catholic without being clumsy about it.  And Thomas Merton could speak to the solitude and contemplation of the human soul in ways that crossed confessional boundaries.  Perhaps, too, a new council could reopen questions about sexual ethics in the light of modern science and human experience.  How long should Aristotle and St. Augustine continue to rule us from the grave?

4. Finally, a new pope might consider the crisis confronting the ministry.

Has the time come to relax the discipline of clerical celibacy?  Certainly, if we take seriously the right of Catholics to have regular access to the Eucharist and the other sacraments, we need more priests.

Yes, I understand the arguments for retaining celibacy.  The priest signifies the totality of Christ's commitment to the Church by imitating Christ in his lack of worldly attachments.  The priest is freed by celibacy to devote himself entirely to the service of the Church and the people entrusted to him.

These are beautiful ideals.  But so also is the regular reception of the Eucharist.  Many Catholics must wait weeks, or longer, for visits by a priest.  There are Catholics plagued by guilty consciences with no one to tell their sins to or grant absolution.  There are Catholics dying every day, deprived of the final solace of the last rites.  Ordinary Catholics deserve better.

We stand at a momentous time in the Church.  Let us pray the cardinals who gather in conclave choose wisely and well.

Cross-posted at Huffington Post: Can Any Good Come of It?

Death & Rebirth in Buddhism: Basic Literature

Please note: Today there are organized and unaffiliated but self-described “secular” and “rationalist” Buddhists who do not believe in the traditional Buddhist metaphysical doctrines of karma and rebirth (some of the individuals so identified share and exhibit the passions of the ‘new atheists’). On ocassion one even finds the argument that the Buddha himself did not teach such doctrines (or that these were late accretions of the ‘superstitious’ sort)! Others are merely agnostic, yet no less disinclined to believe in karma and rebirth. I have not included literature from this alleged class of Buddhists. Two aptly titled works that best exemplify this endeavor to reductively reconstruct Buddhism on purely rationalist and scientific premises, shorn of religious “hocus pocus” or supernaturalist metaphysics and thus arguably closer to secular humanism than conventional or traditional religion, are Stephen Batchelor’s enormously influential book, Buddhism Without Beliefs: A Contemporary Guide to Awakening (1997), and the philosopher Owen Flanagan’s volume, The Bodhisattva’s Brain: Buddhism Naturalized (2011).

Basic introductions:

• Gethin, Rupert. The Foundations of Buddhism. New York: Oxford University Press, 1998.
• Harvey, Peter. An Introduction to Buddhism: Teachings, History and Practices. Cambridge, UK: Cambridge University Press, 1990.

Important background material:

• Bhikkhu, Thanissaro. The Truth of Rebirth: And Why It Matters for Buddhist Practice (2013). Available: http://www.accesstoinsight.org/lib/authors/thanissaro/truth_of_rebirth.html
• Neufeldt, Ronald W., ed. Karma and Rebirth:  Post-Classical Developments. Albany, NY: State University of New York Press, 1986.  
• O’Flaherty, Wendy Doniger, ed. Karma and Rebirth in Classical Indian Traditions. Berkeley, CA: University of California Press, 1980.
• Phillips, Stephen. Yoga, Karma, and Rebirth: A Brief History and Philosophy. New York: Columbia University Press, 2009.

Important discussions of rebirth throughout both of these books (see indices):

• Collins, Steven. Selfless Persons: Imagery and Thought in Theravāda Buddhism. Cambridge, UK: Cambridge University Press, 1982.
• Harvey, Peter. The Selfless Mind—Personality, Consciousness and Nirvāna in Early Buddhism. London: Curzon Press, 1995.

Essential for understanding rebirth from the perspective of Tibetan Buddhism:

• Lati Rinbochay and Jeffrey Hopkins. Death, Intermediate State and Rebirth in Tibetan Buddhism. New York: Snow Lion, 1979.
• Sogyal, Rinpoche (Patrick Gaffney and Andrew Harvey, eds.). The Tibetan Book of Living and Dying. San Francisco, CA: HarperSanFrancisco, 2002 ed.
• Thondup, Tulku. Peaceful Death, Joyful Rebirth: A Tibetan Buddhist Guidebook. Boston, MA: Shambhala, 2005.
• Thubten Zopa, Rinpoche, and Kathleen McDonald. Wholesome Fear: Transforming Your Anxiety about Impermanence and Death. Somerville, MA: Wisdom Publications, 2010.
• Wilson, Martin. Rebirth and the Western Buddhist. London: Wisdom Publications, 2nd ed., 1987.

Additional Titles:

• Becker, Carl B. Breaking the Circle: Death and the Afterlife in Buddhism. Carbondale, IL: Southern Illinois University Press, 1993.
• Boisvert, M. “Death as a Meditation Subject in Theravada Buddhism,” Buddhist Studies Review 13, 1996, No. 1: 37-54.
• Chagdud Tulku Rinpoche. Life in Relation to Death. Junction City, CA: Padma Publ., 2nd ed., 2000.
• Evans-Wentz, W.Y., ed. The Tibetan Book of the Dead. Oxford, UK: Oxford University Press, 3rd ed., 1960.
• Freemantle, Francesca. Luminous Emptiness: Understanding the Tibetan Book of the Dead. Boston, MA:  Shambhala, 2001.
• Jayatilleke, K.N. Survival and Karma in Buddhist Perspective. Kandy, Sri Lanka: Buddhist Publication Society, 1969. Available online: http://www.bps.lk/olib/wh/wh141.pdf
• Kapleau, Philip. The Wheel of Death. London: George, Allen and Unwin, 1972.
• Kapleau, Philip. The Zen of Living and Dying: A Practical and Spiritual Guide. Boston, MA: Shambhala, 1997.
• Langer, Rita. Buddhist Rituals of Death and Rebirth: Contemporary Sri Lankan Practice and Origins. New York: Routledge, 2007.
• Mullin, Glenn H. Death and Dying: The Tibetan Tradition. Boston, MA: Arkana, 1986.

For my earlier compilation on “death and dying” (sans the topic of rebirth) more broadly, please see here.

Justice Scalia, Voting Rights, and Interpretive Hypocrisy

Many pundits have rightly deplored Justice Scalia’s characterization of voting rights as “entitlements.” Less focus has been devoted to his blatant interpretive hypocrisy. Scalia claims to follow the original understanding of the Constitution. He, therefore, should be following the original understanding of the Fifteenth Amendment which gives Congress the power to enforce the right to vote without racial discrimination. Opponents of the Voting Rights Act argue that states with a prior record of discrimination are demeaned by a requirement that they submit any changes to their voting law to the Justice Department. Justice Breyer had the short answer to this inappropriate appeal to federalism, “What do you think the Civil War was about? Of course, it was about treating some states differently than others.”

Justice Scalia’s walk into outer darkness was triggered by the fact that the House had overwhelmingly supported the bill and the Senate had been unanimous. In order to avoid paying deference to the body constitutionally entitled to enforce the legislation, he said that the high margins of passage were

“attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. 

"I don't think there is anything to be gained by any Senator to vote against continuation of this act, . . . "And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that there's a good reason for it. . . .  Even the name of it is wonderful: The Voting Rights Act, . . .Who is going to vote against that in the future?"

I would respond to Justice Scalia’s question with three others: How could one possibly deny the Fifthteenth Amendment was intentionally calculated to run roughshod over the "equal dignity" of the Southern States? How could one possibly claim that under the original understanding of the Fifteenth Amendment Shelby County, Alabama, the party bringing the action against Section 5 of the Voting Rights Law is entitled to equal dignity with other counties and states when it comes to avoiding race discrimination? After all, under Section 5, the Justice Department has blocked 240 attempted changes in Shelby County’s voting laws on the ground that they would disadvantage minorities. And, even more important, since when did it become part of the original understanding of the Constitution that the deference owed to Congress is rightly supplanted by the amateur analysis of an arrogant ideologue wearing a black robe.

A Documentary on Hunger in America

A Place at the Table” takes on hunger in the U.S.

Filmmakers Kristi Jacobson and Lori Silverbush’s new documentary examines the politics and possible ways out.

By John Horn, Los Angeles Times (February 28, 2013)

When people think of hunger, they might picture a starving Third World child. The makers of the new documentary ‘A Place at the Table’ suggest the face of undernourishment can be found much closer to home: Tens of millions of U.S. citizens go to bed hungry every night. ‘Americans are for the most part unaware of how vast the problem is,’ said Kristi Jacobson. She co-directed the film, which premieres in limited release this weekend, with Lori Silverbush, who added, ‘You can’t see hunger in America.’

In keeping with the modern wave of activist non-fiction filmmaking, ‘A Place at the Table’ is no impartial documentary — albeit without a Michael Moore-like rabble rouser. Instead, it is a combination primer and jeremiad, an investigation into how a country with so many resources nevertheless has 16% of its population living in households that struggle with hunger and how federal subsidies benefit agribusiness at the expense of the public’s well-being.

While laying out possible solutions, ‘A Place at the Table’ strongly suggests inaction is the worst possible path, particularly because of hunger’s grave health consequences. ‘The cost to the nation is astronomical,’ Jacobson said.

The movie’s genesis was a phone call Silverbush and her husband, the New York-based chef and ‘A Place at the Table’ executive producer Tom Colicchio, received from a middle school principal.

The couple were mentoring a 12-year-old, and the administrator was on the line to report that the student was rummaging through the trash looking for food. She was one of the invisibly hungry: To unsuspecting eyes, she looked well fed but was actually among more than 16 million U.S. children suffering from hunger or ‘food insecurity,’ a condition where the prospects of filling, healthful meals are doubtful. ‘She was absolutely the poster child for malnutrition,’ Silverbush said of the student, who had suffered from developmental delays and fell asleep in class. [….]

As the film (and a companion book) point out, the U.S. Department of Agriculture found that nearly 14 million Americans lived in such food deserts, where they have low access to supermarkets or large grocery stores. At the same time, low-income and even working-class families can’t afford to buy fresh produce and quality proteins to feed themselves. If you have only a few dollars to eat, in other words, processed foods will fill you up far cheaper than fruits and vegetables. Federal subsidies, the movie argues, help already profitable large farmers keep ingredient costs down for processed foods, while the smaller farmers who plant produce don’t enjoy similar support. ‘We are spending $20 billion a year on agriculture subsidies for the wrong foods,’ Marion Nestle, a nutrition professor at New York University, says in the film. ‘And $20 billion would go a very long way to promoting a healthy, educated population, starting with kids.’

Those facts combine to illustrate ‘A Place at the Table’s’ dramatic linking of obesity to the high cost and scarcity of nutritional food. Hunger and heft, in other words, are symptoms of the same problem. As the film points out, the price of fruits and vegetables has gone up about as much over the last three decade as the price of processed foods has declined. It’s why a single peach can cost about the same as a Whopper. And that, in turn, is partly driving the nation’s obesity epidemic. [….]

See too Susan Schneider’s post on the film at the Agricultural Law blog which speaks to its available formats and has a trailer as well.  

An Amicus Brief in the "Gay Marriage" Cases

Thomas Berg (University of St. Thomas School of Law), Douglas Laycock (University of Virginia School of Law), and Marc Stern (American Jewish Committee), on behalf of the American Jewish Committee, have submitted an amicus brief to SCOTUS in Hollingsworth v. Perry (the Prop 9 case) and USA v. Windsor (the DOMA case).  The brief makes a strong plea for protecting religious liberty in the context of the legalization of same-sex marriage.  The brief also argues:

"In Perry, wholly excluding same-sex couples from civil marriage deprives them of a fundamental right.  And as implausible as it is to explain civil marriage in terms of protecting children, it is even more implausible to use children to explain the difference between civil marriage and a civil union that would — if it were sufficiently well understood to be enforceable as a practical matter — confer all the same rights as civil marriage.  If the Court prefers to proceed cautiously, deciding one case at a time, it should affirm the judgment in Perry on the narrow ground stated by the Court of Appeals.  The Court should not reverse on the merits.  To do so would be wrong, for the reasons we have stated; it would also be unstable.  In the area of same-sex relationships, where public understanding of the underlying facts is rapidly changing, the Court cannot reach a stable constitutional resolution by broadly rejecting constitutional claims.  The last time it attempted to do so, in Bowers v. Hardwick, 478 U.S. 186 (1986), it overruled the decision just seventeen years later, and parts of the Bowers opinions are now a permanent embarrassment in the United States Reports.  The Court should not repeat its Bowers mistake in these cases."

The brief is available here:  Download Marriage Cases AJC Brief Final.

Tis Late

A friend sent me the poem at this link thinking I would like it. Go here.

I do.

New Blog Member

I would like to welcome Charles Reid to Religious Left Law. We are fortunate to have him.

File under "Interesting Developments"

It is reported in the NYT this morning (here) that "Republicans Sign Brief in Support of Gay Marriage".  One of those Republicans is former Utah governor--and also former, and possibly future, presidential candidate--Jon Huntsman.  In an article published just last week in The American Conservative (here), Governor Huntsman wrote: 

"While serving as governor of Utah, I pushed for civil unions and expanded reciprocal benefits for gay citizens. I did so not because of political pressure—indeed, at the time 70 percent of Utahns were opposed—but because as governor my role was to work for everybody, even those who didn’t have access to a powerful lobby. Civil unions, I believed, were a practical step that would bring all citizens more fully into the fabric of a state they already were—and always had been—a part of.

That was four years ago. Today we have an opportunity to do more: conservatives should start to lead again and push their states to join the nine others that allow all their citizens to marry. I’ve been married for 29 years. My marriage has been the greatest joy of my life. There is nothing conservative about denying other Americans the ability to forge that same relationship with the person they love.

All Americans should be treated equally by the law, whether they marry in a church, another religious institution, or a town hall. This does not mean that any religious group would be forced by the state to recognize relationships that run counter to their conscience. Civil equality is compatible with, and indeed promotes, freedom of conscience.

Marriage is not an issue that people rationalize through the abstract lens of the law; rather it is something understood emotionally through one’s own experience with family, neighbors, and friends. The party of Lincoln should stand with our best tradition of equality and support full civil marriage for all Americans."

First E.J. Dionne, Now Elmore Leonard: A Nun for Pope!

Elmore Leonard weighs in here.  (E.J. Dionne, here.)

The best choice for pope? A nun.

So writes E.J. Dionne, columnist for The Washington Post who is himself Catholic, here.

Genocide: A Select Bibliography

There’s a little bit of everything here: legal, sociological, historical,* and philosophical approaches to and dimensions of genocide, as well as several works that focus on specific and well-known cases of genocide in the twentieth century. In a forthcoming post I’ll introduce some material from Larry May’s (characteristically) incisive normative examination (below) of the moral and legal concept of genocide, in part, because I’m interested in the notion of “cultural genocide,” which lacks full-fledged legal recognition as a distinct crime in international criminal law. In turn, I hope even further down the road to discuss cultural genocide in Tibet, especially by way of accounting for the resort to self-immolation as a form of (largely) religiously motivated or sanctioned (in this instance) political protest. I welcome suggestions for additional entries to this (‘select’) list.

• Amann, Diane Marie, “Group Mentality, Expressivism, and Genocide,” International Criminal Law Review, Vol. 2, 2 (2002): 93-143, 2002. Available: http://ssrn.com/abstract=1006594.
• Bailyn, Bernard. The Barbarous Years—The Peopling of British North America: The Conflict of Civilizations, 1600-1675. New York: Alfred A. Knopf, 2012.
• Benesch, Susan, “Vile Crime or Inalienable Right: Defining Incitement to Genocide,” Virginia Journal of International Law, Vol. 48: 3 (2008): 485-528.
• Card, Claudia, and Arman T. Marsoobian, eds. Genocide’s Aftermath. Oxford, UK: Blackwell, 2007.
• Chalk, Frank, and Kurt Jonassohn. The History and Sociology of Genocide. New Haven, CT: Yale University Press, 1990.
• Davidson, Lawrence. Cultural Genocide. New Brunswick, NJ: Rutgers University Press, 2012.
• Donnelly, Jack. “Genocide and Humanitarian Intervention,” Journal of Human Rights, Vol. 1, No. 1 (March 2002): 93-109.
• Gourevitch, Philip. We wish to inform you that tomorrow we will be killed with our families: Stories from Rwanda. New York: Picador, 1998.
• Greenawalt, Alexander. “Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation,” Columbia Law Review, Vol. 99 (1999): 2259-2294.
• Grunfeld, Fred, and Anke Huijboom. The Failure to Prevent Genocide in Rwanda: The Role of Bystanders. Leiden: Martinus Nijhoff, 2007. 
• Hochschild, Adam. King Leopold’s Ghost: A Story of Greed, Terror, and Heroism in Colonial Africa. Boston, MA: Houghton Mifflin, 1998.
• International Campaign for Tibet (Report). “60 Years of China Misrule: Arguing Cultural Genocide in Tibet.” Washington, DC: International Campaign for Tibet, 2012. 
• Jones, Adam. Genocide: A Comprehensive Introduction. New York: Routledge, 2006.
• Kiernan, Ben. The Pol Pot Regime: Race, Power, and Genocide under the Khmer Rouge, 1975 79. New Haven, CT: Yale University Press, 3rd ed., 2008.
• Lang, Berel. Act and Idea in the Nazi Genocide. Chicago, IL: University of Chicago Press, 1990.
• Lemkin, Raphael. Axis Rule in Occupied Europe, Laws of Occupation, Analysis of Government, Proposals for Redress. Washington, DC: Carnegie Endowment for World Peace, 1944.
• Luban, David. “Calling Genocide by Its Rightful Name: Lemkin’s Word, Darfur, and the UN Report,” Chicago Journal of International Law, Vol. 7, No. 1 (Spring 2006): 1-18.
• Mamdani, Mahmood. When Victims become Killers: Colonialism, Nativism, and the Genocide in Rwanda. Princeton, NJ: Princeton University Press, 2001.
• May, Larry. Genocide: A Normative Account. New York: Cambridge University Press, 2010.
• Newman, Leonard S., and Ralph Erber, eds. Understanding Genocide. New York: Oxford University Press, 2002.
• Pendas, Devin O. The Frankfurt Auschwitz Trial, 1963-1965: Genocide, History, and the Limits of the Law. New York: Cambridge University Press, 2006.
• Power, Samantha. “A Problem from Hell:” America and the Age of Genocide. New York: HarperCollins, 2002.  
• Prunier, Gérard. The Rwanda Crisis: History of a Genocide. New York: Columbia University Press, 1995.
• Quigley, John. The Genocide Convention: An International Law Analysis. Burlington, VT: Ashgate, 2006.
• Ramji [now: Ramji-Nogales], Jaya, and Beth Van Schaack, eds. Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence before the Cambodian Courts. Lewiston, NY: Edwin Mellen Press, 2005.
• Rosenbaum, Alan S., ed. Is the Holocaust Unique? Boulder, CO: Westview Press, 2001.
• Schabas, William. A. Genocide in International Law: The Crime of Crimes. New York: Cambridge University Press, 2nd ed., 2009.
• Shaw, Martin. What is Genocide? Cambridge, UK: Polity Press, 2007.
• Shelton, Dinah, ed. Encyclopedia of Genocide and Crimes against Humanity, 3 Vols. Detroit, MI: Macmillan Reference, 2005.
• Waller, James. Becoming Evil: How Ordinary People Commit Genocide and Mass Killing. New York: Oxford University Press, 2002.
• Wouters, Jan, and Sten Verhoeven. “The Prohibition of Genocide as a Norm of Ius Cogens and Its Implication for Enforcement of the Law of Genocide,” Institute for International Law, Working Paper No. 69 (January 2005), Available: http://www.law.kuleuven.be/iir/nl/onderzoek/wp/WP69e.pdf

See too the literature available from the Genocide Studies Program at Yale University.

* For an introductory catalogue of cases: actual, possible, and unlikely, please see the Wiki entry on “Genocides in history.”

For those wanting an introduction to the basics of international criminal law, I recommend the following five volumes:

i)   Cassese, Antonio. International Criminal Law. New York: Oxford University Press, 2nd ed., 2008.

ii)   Cassese, Antonio, Editor-in-chief. The Oxford Companion to International Criminal Justice. New York: Oxford University Press, 2009.

iii)  Cassese, Antonio A., Guido G. Acquaviva, Mary D. Fan, and Alex A. Whiting. International Criminal Law: Cases & Commentary. New York: Oxford University Press, 2011.

iv)  Cryer, Robert, Håkan Friman, Darryl Robinson, and Elizabeth Wilmshurst. An Introduction to Criminal Law and Procedure. New York: Cambridge University Press, 2007.

v)   Werle, Gerhard. Principles of International Criminal Law. The Hague, The Netherlands: T∙M∙C∙ Asser Press, 2nd ed., 2009.

Image: “Meo Soknen, 13, stood inside a small shrine full of human bones and skulls, all victims of the Khmer Rouge…in Kandal Province, Cambodia” (2009). (Heng Sinith/Associated Press)

My Love/Hate Relationship with Ronald Dworkin's Scholarship

Ronald Dworkin died last Thursday. I met him twice, but I doubt he could have picked me out of a lineup. Nonetheless, he had an enormous influence on my scholarship. Simply put, much of my scholarship has been directed against his. I do not mean this as a cheap shot. Dworkin was a scholarly giant writing squarely in the Kantian tradition, but I rebel against that tradition, or more precisely, a significant part of it.

It was Dworkin who first drew me into an interest in political theory. He wrote an essay on liberalism many decades ago in which he argued that liberalism was committed to the view that the state should be neutral about the good life. My reaction was that this was not the liberalism I knew and appreciated. The state had never been neutral about the good life, never would be, and never should be. Even more important Dworkin’s thesis (which was qualified and refined over the years) was set in a larger theory claiming that moral and political questions could all be resolved by reference to fresh deductions from a small set of premises. My reaction has been that free speech, for example, clashes with too many other values and interests to hope or expect that the right answer to these problems could ever be found by deductions from a small set of premises. To be fair, Dworkin conceded that a right like freedom of speech could be limited if it conflicted with another right, but the criteria for determining the content of a right were too elusive for my tastes. Over the years, I realized that I had a temperamental objection to grand theory. It was not just that I thought grand theory was pragmatically unrealistic. I did not want grand theory to succeed. It was too simple; too pat; and insufficiently appreciated the romance and mystery of moral life.

At the same time, I realized that those who write in the tradition of grand theory have reasons of temperament to want it to succeed that go beyond pragmatic considerations, and I wrote about that (The First Amendment, Democracy, and Romance, Ch. 4) after giving a talk at NYU, the home of grand theory either in the realm of political theory like Dworkin or in the realm of ACLU free speech liberalism (NYU was the ACLU’s most important law school home many decades ago). My talk was not well developed, but the defensive reaction I received even from ordinarily gentle folk who fiercely resisted my psychological speculation showed me I was on to something. (In fairness, Larry Sager was enormously helpful).

If I disagreed with Dworkin on much and am grateful that he inspired me to fight against him, I agreed with much as well. One does not have to be a devotee of grand theory to recognize the importance of equality, dignity, and autonomy, and Dworkin championed all three in eloquent and thoughtful ways. Similarly there are many areas where instrumental arguments are out of place, as Dworkin so frequently argued. Even more important, Dworkin brilliantly argued that law is not just a set of rules, but policy arguments and moral principles are a part of law. Indeed, as I interpret him, Dworkin claimed that there was always a right answer to legal, moral, and political problems. This was part of his theory that I most appreciate: moral skepticism is not an appropriate foundation for liberalism; it is an incoherent and psychopathic basis for law and politics.  I think this is an area where Mill and Dworkin come together though Mill laid more stress on our fallibility in determining what the right answer might be.

Dworkin was an eloquent champion of civil liberties and a public intellectual. He was an important moral, political, and legal theorist. He is gone. But he has left a body of work that will be influential for a long time to come.

"A Reply to My Critics" -- Chuck Reid

[University of St. Thomas law prof Chuck Reid asked me to post this statement at Mirror of Justice, which I was happy to do.  I thought that because some RLL readers will be interested in the statement, I should post it here too.]

          In my abortion columns written over the last five months, I have made it clear that I do not disagree in principle with the propositions that life begins at conception and that it is deserving of legal protection.  My quarrels have been, rather, with the political strategies of the pro-life movement, as it has evolved over the last four decades.

          Many readers have noticed this.  A commenter on one my Huffington Post columns observed (I paraphrase):  Reid's proposal to cooperate on a shared agenda with the left to reduce the rate of abortion is probably the only way forward for the pro-life movement.  But this observer, who acknowledged that he/she was pro-choice, continued by noting that the pro-life movement would never follow.  And then there were the editors at the Italian newspaper, La Stampa, who profiled my work in an article entitled "Changing Strategy on the Culture of Life."  The editors certainly understood my work to speak to strategy, not principle.  So, let's be clear upfront, my concern is centered in the world of prudential judgment, it is a matter of how to succeed given today's political realities.  It is not an argument over first principles.  As I have made very clear, the pro-life movement should be about saving lives in the here and now.

          I have known women who have experienced the tragedy of abortion.  There was the Jewish woman who received the grim news early in her pregnancy that her child was anacephalic -- developing without a head.  The child could be expected to survive no more than a few hours post partum, if that.  She was devastated and looked to the teachings of her faith which made it clear to her lights that abortion was recommended in such extreme cases to limit needless suffering.  And then there were the Catholic women, several of them, I became acquainted with during my service as a matrimonial judge.  None of them wanted to have an abortion.  But they were lonely, desperate, their spirits crushed by boyfriends and families who abandoned them.  Alone, lacking financial and emotional resources, they chose a solution for which they were truly sorry but which seemed inevitable at the time.

          These vivid life experiences have taught me that the common denominator to the choice to have an abortion is desperation.  I have yet to meet a woman who chose abortion to satisfy some desire for greater material resources.  I am sure there are some who decide that they will never get that Mercedes Benz if they have a hungry mouth to feed, but those women are few in number.  Desperation, hopelessness, a fear of being left alone in the world without means of assuming the responsibilities of childcare -- these are the great causes of abortion.  Individual pro-lifers, and organizations such as pro-life pregnancy centers to which individuals devote their time, have recognized this, to their great credit.  But the political strategy of the pro-life movement has failed to recognize it, and indeed increasingly stands in the way of it.

Toward an Understanding of Self-Immolation (as ‘fire suicide’ or ‘auto-cremation’): A Basic Reading Guide

I’ve been doing a bit of research for a forthcoming post on self-immolation in Tibet and I thought I’d share some basic source material (I may add to this list if I come across anything else worthy of inclusion).

• Benn, James A. Burning for the Buddha: Self-Immolation in Chinese Buddhism. Honolulu, HI: University of Hawai’i Press, 2007.
• Benn, James A. “The Lotus Sūtra and Self-Immolation,” in Jacqueline I. Stone and Stephen F. Teiser, eds. Readings of the Lotus Sūtra. New York: Columbia University Press, 2009: 107-131.
• Benn, James A. “Multiple Meanings of Buddhist Self-Immolation in China—A Historical Perspective,” Revue d’Etudes Tibétaines, no. 25 (Décembre 2012): 203-212.
• Biggs, Michael. “Dying Without Killing: Self-Immolations, 1963-2002,” in Diego Gambetta, ed. Making Sense of Suicide Missions. New York: Oxford University Press, 2005: 173-208.
• Biggs, Michael. “How Suicide Protest Entered the Repertoire of Contention,” Sociology Working Papers, No. 2012-03, Department of Sociology. Available: http://users.ox.ac.uk/~sfos0060/repertoire.pdf
• Biggs, Michael. “Self-Immolation in Context, 1963-2012,” Revue d’Etudes Tibétaines, no. 25 (Décembre 2012): 143-150.
• Biggs, Michael. “Ultimate Sacrifice: What’s the Difference between Self-Immolation and Suicide Bombers?,” Foreign Policy (December 3, 2012). Available:  http://www.foreignpolicy.com/articles/2012/12/03/ultimate_sacrifice
• Cholbi, Michael, “Suicide,” The Stanford Encyclopedia of Philosophy (Winter 2012 Edition), Edward N. Zalta (ed.), http://plato.stanford.edu/archives/win2012/entries/suicide/   
• Hope, Marjorie. “The Reluctant Way: Self-Immolation in Vietnam,” The Antioch Review, 27 (1967): 149-163.
• International Campaign for Tibet Report. “Storm in the Grasslands: Self-Immolations in Tibet and Chinese Policy.” Washington, DC, 2012. Available: http://www.savetibet.org/resource-center/ict-publications/reports/storm-grasslands self-immolations-tibet-and-chinese-policy
• King, Sallie B. “They Who Burned Themselves for Peace: Quaker and Buddhist Self-Immolators during the Vietnam War,” Buddhist-Christian Studies, 20 (2000): 127-150.
• Verini, James. “A Terrible Act of Reason: When Did Self-Immolation Become the Paramount Form of Protest?,” The New Yorker (May 16, 2012). Available: http://www.newyorker.com/online/blogs/culture/2012/05/history-of-self immolation.html
• Yun-hua, Jan. “Buddhist Self-Immolation in Medieval China,” History of Religions, 4 (1964-1965): 243-265.

 Image: Manish Swarup/Associated Press

Axe Handles (in honor of a friend's birthday)

I sent the following poem, one of my favorite by Gary Snyder, to our friend Pico Iyer on his birthday.           

                    Axe Handles

One afternoon the last week in April

Showing Kai how to throw a hatchet

One-half turn and it sticks in a stump.

He recalls the hatchet-head

Without a handle, in the shop

And go gets it, and wants it for his own.

A broken-off axe handle behind the door

Is long enough for a hatchet,

We cut it to length and take it

With the hatchet head

And working hatchet, to the wood block.

There I begin to shape the old handle

With the hatchet, and the phrase

First learned from Ezra Pound

Rings in my ears!

“When making an axe handle

     the pattern is not far off.”

And I say this to Kai

“Look: We’ll shape the handle

By checking the handle

Of the axe we cut with—”

And he sees. And I hear it again:

It’s in Lu Ji’s Wen Fu, fourth century

A.D. “Essay on Literature”—in the

Preface: “In making the handle

Of an axe

By cutting wood with an axe

The model is indeed near at hand.”

My teacher Shih-hsiang Chen

Translated that and taught it years ago

And I see: Pound was an axe,

Chen was an axe, I am an axe

And my son a handle, soon

To be shaping again, model

And tool, craft of culture,

How we go on.

—Gary Snyder, from Axe Handles: Poems by Gary Snyder (New York: North Point Press, 1983)

The Selfless Heroism of Four Chaplains (or the vicissitudes of religious faith and virtues)

After learning this weekend of yet another horrible scandal in the Catholic Church, this time involving the disgraced Cardinal Mahony, I was pleased to read something in a different key in this morning’s paper:

The story by Steve Chawkins is from today’s Los Angeles Times:

“For a long time, the story of the four chaplains was everywhere. In classrooms, posters showed the men of different faiths, arms linked in prayer, braced against the waves engulfing the deck of their torpedoed troop ship on Feb. 3, 1943. They had given their life preservers to frantic soldiers and urged troops paralyzed with fear to jump into the icy North Atlantic before they were sucked down by the sinking ship’s whirlpool.

A postage stamp in 1948 honored the two Protestant ministers, the Catholic priest and the rabbi. Streets and schools soon were named after them, a chapel in Philadelphia dedicated to them, books written about them. Testimonials to their self-sacrifice were lavish; President Truman said, ‘I don’t think in the history of the world that there has been anything in heroism equal to this. It was the greatest sermon ever preached.’

But 70 years after one of World War II’s most celebrated episodes, the story has faded, kept alive these days mainly by veterans groups, history buffs and family members of the 672 men who died in the sinking of the ill-fated Dorchester. Only 230 survived. The last among them died Jan. 12 at age 91.

Aboard the Queen Mary in Long Beach, the tiny Immortal Chaplains Memorial Sanctuary is a reminder that the old luxury liner ferried Allied troops in World War II. A few artifacts sit in display cases: a map, a signal light from a life jacket, a harmonica that belonged to a German submarine officer. The Queen Mary also ferried prisoners of war from the battlefields of Europe to camps in North America.

On a continuous loop, the deep, plummy voice of actor David Fox-Brenton tells the Dorchester’s story: ‘It was to be the third-largest loss of life at sea for the United States in World War II. On board were almost 1,000 men — and four immortal chaplains....’

Fox-Brenton, who lives in Mission Viejo, is a nephew of one of the heroic quartet, Methodist chaplain George Fox. In 2000, Fox-Brenton introduced Dorchester survivors to former crew members of U-223, the Nazi submarine that attacked their ship. One of them, Gerhard Buske, played ‘Amazing Grace’ on his harmonica — an instrument that he had played aboard the sub and later donated to the museum.

‘It was a very emotional time,’ Fox-Brenton said. He started the Queen Mary tribute in 2005 after realizing about a decade before that his uncle and the three others were fast becoming unknowns.” [….] The rest of the story is here.

The National Security State: It’s Secret

At Concurring Opinions, Danielle Citron writes:

“Recall after President Obama’s first inauguration the fuss made about his administration’s commitment to transparent government.  The January 2009 Open Government memorandum seemed a fresh start for openness in the post-9/11 era.  Now, four years later, drastic change in government secrecy has not materialized.”

It may turn out that some semblance of “progress” will be made on this or that front by the Obama administration when it comes to increased transparency, but I suspect, for structural reasons as it were, that this is a problem with no easy or imminent resolution. Why? Because I believe with Garry Wills in Bomb Power: The Modern Presidency and the National Security State (2010), that this lack of transparency is one necessary consequence of, and thus now intrinsic to, the concentration of power in the executive branch since World War II, when our government became largely transformed into a National Security State (in the sense that national security presumptions, perceptions, and imperatives have been accorded an extra-constitutional power to trump those virtues of governance associated with liberal-democratic regimes). To be sure, the “war on terror” and the inchoate insecurities associated with being a declining imperial power (in no small measure because neoliberal capitalist globalization lacks nationalist subservience and loyalty*) serve as variables that exacerbate these structural features, and the power of money to corrupt our politics serves to distract those who represent us from attending to what truly matters for democratic governance in our time and place. As Wills writes,

“[T]he momentum of accumulating powers in the executive is not easily reversed, checked, or even slowed. It was not created by the Bush administration [although Yoo and others shamelessly endeavored to give it an historico-legal imprimatur]. The whole history of America since World War II caused an inertial rolling of power toward the executive branch. The monopoly on use of nuclear weapons, the cult of the Commander in Chief, the worldwide web of military bases to maintain nuclear alert and supremacy, the secret intelligence agencies, the whole National Security State, the classification and clearance systems, the expansion of state secrets, the withholding of evidence and information, the permanent emergency that melded World War II and the Cold War with the war on terror—all these make a vast and intricate structure that may not yield to efforts at dismantling it. [….] A president is greatly pressured to keep all the empire’s secrets. He feels he must avoid embarrassing the hordes of agents, military personnel, and diplomatic instruments whose loyalty he must command. Keeping up morale in this vast shady enterprise is something impressed on him by all manner of commitments. He becomes the prisoner of his own power. As President Truman could not not use the Bomb, a modern President cannot not use his huge power base. It has all been given him as the legacy of Bomb Power, the thing that makes him not only Commander in Chief but Leader of the Free World. He is a self-entangling giant.”

* National self-deception and states of denial at both ends of the political spectrum (such as it is) continue to afflict the powers-that-be with regard to the end of the “white man’s burden” and the shattering of the messianic complex. Those with avowed commitments to liberal values and the principles and practices of democracy will have to acquire heretofore elusive habits and virtues should they wish to avoid interminable violent conflicts and maintain (or increasingly attain) a reasonable level of “universal” welfare and well-being, one no longer dependent on exploiting the resources and vulnerabilities of others around the planet (or the planet itself, for that matter). The writing is on the wall, but it’s seen as indecipherable graffiti: Charles A. Kupchan, No One’s World: The West, the Rising Rest, and the Coming Global Turn (Oxford University Press, 2012).