Jason Samuel as Judge Poser

A Repeat of MacIntyre

I'd like to repost a quotation from Alasdair MacIntyre's After Virtue for your consumption.  What triggered my interest in this passage--though, I don't require much a trigger to re-read MacIntyre--is that I have a friend who is currently writing manuals for activism.  I'll save the specifics for another time, if ever at all.  Suffice it to say, however, I wanted to share with him what MacIntyre said about protest. 

It is easy also to understand why protest becomes a distinctive moral feature of the modern age and why indignation is a predominant modern emotion. 'To protest' and its Latin predecessors and French cognates are originally as often or more often positive as negative; to protest was once to bear witness to something and only as a consequence of that allegiance to bear witness against something else.

But protest is now almost entirely that negative phenomenon which characteristically occurs as a reaction to the alleged invasion of someone’s rights in the name of someone else’s utility. The self-assertive shrillness of protest arises because the facts of incommensurability ensure that protestors can never win an argument; the indignant self-righteousness arises because the facts of incommensurability ensure equally that the protestor can never lose an argument either. Hence the utterance of protest is characteristically addressed to those who already share the protestors’ premises. The effects of incommensurability ensure that the protestors rarely have anyone else to talk to but themselves. This is not to say that protest cannot be effective; it is to say that it cannot be rationally effective and that its dominant modes of expression give evidence of a certain perhaps unconscious awareness of this.

MacIntyre consistently returns to the idea that indignation ensues because no one can ever "win."  To determine a winner, we'd have to have some agreement on what would constitute or determine a win.  As the entry in the Internet Encyclopedia of Philosophy captures the problem:

MacIntyre claims that protest and indignation are hallmarks of public "debate" in the modern world. Since no one can ever win an argument – because there's no agreement about how someone could "win" – anyone can resort to protesting; since no one can ever lose an argument – how can they, if no one can win? – anyone can become indignant if they don't get their way. If no one can persuade anyone else to do what they want, then only coercion, whether open or hidden (for example, in the form of deception) remains. This is why, MacIntyre says, political arguments are not just interminable but extremely loud and angry, and why modern politics is simply a form of civil war. 

My friend's task, as I see it, is to write his manuals, acknowledging that he will be speaking to those with whom he already agrees, or, in the least, already shares foundational presumptions.  But how can he universalize his message?

Criticism of the Left, (from the left?)

From PrawfsBlog; nicely said.

Why the Left Ought to Support (An Aspect of) Bush's Foreign Policy

I know some readers of this blog tend to be from the Left. Let me get my worry off my chest.  One of the pathetic sights of the last few years has been the reluctance of the Left, here and in Europe, to denounce and reject Islamofascism. Yes, because, in spite of all the PC talk about Islam as a religion of peace, the enemy we are facing is Islamofascism (I hasten to say that not all Muslims are fascists). One of the great traditions of the Left has been its struggle against all forms of totalitarianism, especially of the fascist kind. Yet the Left has, to my knowledge, refused to endorse the message of the President's second inaugural address, when he promised to fight tyranny in the world. Why?  Because the Left is partisan and hypocritical. The current ethos of the Left is to support any regime, even fascist ones, as long as they are targeted by a U.S. Republican administration. For the Left to take to the streets to support Saddam Hussein , a genocidal monster, is the ultimate shame for a political movement that, while slow to criticize Communism in the past, at least bravely fought fascist forms of oppression.  The movement that took to the streets in 2003 was not to protest the horrendous dictatorship in Iraq, but to protest the intervention to overthrow the horrendous dictatorship. Shame on the Left. I think the Left has to reconstitute itself and recover the great imagination about equality and freedom, and stop obsessing about G.W.B. and conservatives. As far as I'm concerned, the Left today is a reactionary political movement. It not only supports Islamofascism. It also distrusts free markets, the one hope of reducing world poverty. Once you peel off all the layers of the onion, there's nothing left.

Harriet Miers cheat sheet

Gordon Smith, of Conglomerate, posted a link to a Harriet Miers cheat sheet.

Zenit Mentionable

Cardinal Would Ban Communion for Certain Lawmakers Those Who Deny Christian Principles

VATICAN CITY, OCT. 9, 2005 (Zenit.org).- Cardinal Alfonso López Trujillo asked a blunt question when addressing the Synod of Bishops: "May access to Eucharistic Communion be allowed to those who deny human and Christian values and principles?"

The president of the Pontifical Council for the Family raised the question in connection with politicians and lawmakers. He answered his own question with a "no."

"So-called personal option cannot be separated from the sociopolitical duty," the cardinal said Friday.

"It is not a 'private' problem. The acceptance of the Gospel, of the magisterium and of right reasoning are needed!"

"Today, the projects for laws and the choices made or to be made seriously imperil 'the good news' that is the Gospel of the family and of life, which form an indivisible unity," he continued. "The future of man and society comes into play and, in many aspects, the genuine possibility for integral evangelization."

"The social fabric is wounded in a serious way" as these laws attack the most fundamental rights, such as the right to life, "beginning with the abominable crime of abortion," the Vatican official warned.

"As can be often heard, there is a spurious argument for a so-called free political choice, which would have the primacy over evangelical principles and also over the reference to correct reasoning," he observed.

As a result, legislation has been introduced on de facto couples "which at least implicitly would constitute an alternative to marriage, even if these unions are simply a legal fiction," added Cardinal López Trujillo, 69. It is "worse yet, when dealing with couples of the same sex, something unknown in the cultural histories of people and in law."

He concluded: "Politicians and legislators must know that, by proposing or defending projects for iniquitous laws, they have a serious responsibility for, and must find a remedy for the evil done and spread, in order to be allowed access to communion with the Lord."
ZE05100921

Interesting Contributions for a friend of the President

(HT Legal Theory Blog)

Congratulations!

Interpreting Scripture with Context (In re: Objective Justice post)

Sean Sirrine has posted and commented on an interesting story of a fourteen year-old who was recenty expelled from her Christian school for having two lesbian parents. 

I believe Sean captures the situation incorrectly when he calls the school, and associated religious organizations, “too dumb to read their own scriptures.” He re-tracts his caricature a bit when he offers this explanation for the school’s behavior: “maybe they want to persecute these people because they know it will get the persecuted into Heaven.”

How he can at once caricature the school’s administrators for being too dumb to read their own Christian scriptures but then lavish the compliment that the administrators are doing what they’re doing to earn the lesbian couple and their children places in heaven, is beyond reasonable. For one, to know how one gets to heaven—at least for these Christians—the Bible serves as their roadmap. A book, however, they’re too dumb to read. So the act of persecuting this family, which Sean caricatures as an act of virtue for these administrators, must then be merely coincidentally consistent with Christian scripture since the Christians are in this case “too dumb to read [it].”

Of course Sean isn’t being completely serious with the situation. The tension that results from his two statements then cannot be taken too seriously. I am definitely extending what Sean said if I assume that he takes the actions of the school’s administrators as inconsistent with Jesus’ teaching of tolerance, as Sean sees it, in the Gospels. An assumption, however, consistent with Sean’s entire post. More simply, I believe Sean was trying to point out a situation of hypocritical Christians. So the argument typically builds: 1) Christ preached tolerance; 2) to follow the teachings of someone means to assume them; 3) therefore, to follow Christ means to be tolerant. If someone can then point to an instance where a follower of Christ—err, a Christian—isn’t practicing tolerance, then he can be charged with hypocrisy, “the practice of professing beliefs, feelings, or virtues that one does not hold or possess.”

Sean quotes Matthew’s account: “Blessed are they who are persecuted for the sake of righteousness, for theirs is the kingdom of heaven” (Matt 5:10). From that Sean takes that Jesus taught tolerance over intolerance: “I'm not sure, but this Jesus guy seemed to think that intolerance was a bad thing.”

What Sean leaves out of his analysis is the full context of the portion he quoted. Matthew’s account of Jesus’ excortication has Jesus qualify those instances where those who are persecuted will inherit the kingdom of heaven—because it isn’t merely being persecuted that earns one a place in the kingdom. Jesus says, to repeat: “Blessed are they who are persecuted for the sake of righteousness, for theirs is the kingdom of heaven” (emphasis added). Jesus more accurately qualifies those who are persecuted for their righteousness. Mere persecution isn’t enough. It’s persecution because the person is righteous.

At this point we can debate whether Jesus considered lesbian parenting a righteous act, but that’d be missing the point. Suffice it to say, however, that the scholarly understanding of righteousness in this context—that is Matthew’s gospel—means conduct in conformity to God’s will. While some may not agree that two lesbian parents is not in conformity with God’s will, we can safely assume that the Christians who run this school hold homosexuality as inconsistent with Scripture, including the portion Sean quotes. From this, is intolerance not the valid conclusion?

More simply, what these school administrators have done in this case shouldn’t strike anyone as betraying the creed they profess. They’re not unaware of Jesus’ exhortation of the Beatitudes, they’re merely capturing what Jesus said in the context of the rest of Scripture. They’re not neglecting a portion, which Sean has tried pointed out.

Citing to Foreign Law

Dan Kahan, of Georgetown’s Exploring International Law blog, posted a link to the AP coverage (with excerpts) of Justice Ginsburg’s recent remarks at a recent New York City Bar Association reception. The lecture, which was given by Mary Robinson, former president of Ireland, was in Justice Ginsburg’s honor. Justice Ginsburg remarked: “I will take enlightenment wherever I can get it…I don't want to stop at a national boundary.”

How can we interpret the justice’s remarks in light of the current debate on the matter of citing to foreign law. Truly, I don’t know how to interpret the justice’s mention of enlightenment. For one, I find it an interesting choice of words. If we assume the common usage of “enlightenment,” then the justice most probably meant learning, “education that results in understanding and the spread of knowledge.”

In her recent article, which I posted about here, Mary Ann Glendon suggested that this process of “learning” is selective, and I will add results-oriented: “The problem is not reference to foreign law: It is how foreign law is used by judges who usurp powers reserved under the Constitution to the people and their elected representatives, and whose desire to "learn" is limited to finding arguments in support of conclusions that have little constitutional warrant. The learning process of the foreign law enthusiasts, moreover, is selective.”

Glendon then quotes Scalia’s take that those who cite to foreign law are merely “looking over the heads of the crowd and picking out their friends.” That is to say, in light of Justice Ginsburg’s comment, that those who cite to foreign law are not so much open to the diversity of law on any topic but choose, instead, to focus on those foreign laws that lend support to a pre-determined result. This is explained by Glendon later in her piece that those who cite to foreign law ignore the diversity and difference in foreign laws: “They have shown no disposition to explore why most democracies take a different view from theirs on exclusion of illegally obtained evidence, regulation of abortion or separation of church and state.”

Given the diversity in and of foreign law, enlightenment to/of others’ ways is perhaps a pretext to add support not otherwise lent by our domestic law. That conclusion is, to be sure, quite cynical, but not improbable. As Glendon, whose expertise is in comparative law, suggests, there is a definite difference in the way other legal systems conceive the rules of evidence, regulate abortion, or how religion and government should interplay. Those justices who’ve taken to citing foreign law have not taken any care to account for the foreign law in opposition to their opinion/holding. A natural conclusion is that citing to foreign law, as it is practiced, is self-serving and results-oriented. This betrays the semantics of Justice Ginsberg’s comment, which referenced enlightenment, not a results-oriented endeavor.

The next topic I’m interested in exploring is how we can apply the idea of incommensurability to the relevance of foreign law to our legal system.

Law Justice_Ginsburg foreign_law

Law professors who think they understand the law

A co-blogger, Sean, posted on a letter to Senators Spector and Leahy signed by 160 law professors that opposes Judge Roberts' nomination.  I suggest you read his post.

TrueMarriage.net

I'd like to bring to your attention this new site: TrueMarriage.net - Marriage Through Contract.  The Executive Director and Founder was a professor of mine in my first year of law school.