8/15/2019—I am the moderator of the Bends Toward Justice podcast series, in which I talk to people about the teaching of Dr. Martin Luther King, Jr., that the arc of the moral universe is long, but it bends toward justice.
It is pretty clear what Dr. King meant by this, at least in a general way. He did not invoke God per se, but something good is in charge of history. Progress is slow and not linear, but it does happen. Usually, anyway.
The question for the podcast is what this means today to people without Dr. King’s strong religious faith?—which is most people.
So, enter Madelaine Schwartz, reviewing Lara Feigel’s book about Doris Lessing: Free Woman. (NY Review, 9/27/2018). Feigel uses Lessing’s work, The Golden Notebook, to introduce themes of life and liberation.
Here’s the relevant quote from the review: “Yet Anna believes that 'every so often, perhaps once in a century, there’s a sort of—act of faith. A well of faith fills up, and there’s an enormous heave forward in one country or another, and that’s a forward movement for the whole world. Because it’s an act of imagination—of what is possible for the whole world. In our century it was 1917 in Russia. And in China. Then the well runs dry, because, as you say, the cruelty and the ugliness are too strong. Then the well slowly fills again. And then there’s another painful lurch forward.’”
This is maybe more detailed than Dr. King had in mind. And Dr. King would have included particular nations—he certainly expected more justice in the US.
But Lessing’s observation is good, because it points out that progress in one place in the globe inevitably affects everyone else. There is something irresistible about justice.
Also, Lessing is helpfully pointing out that it may be more imagination than justice. First we have to imagine a future before a future can occur.
Showing posts with label Hallowed Secularism and Higher Law. Show all posts
Showing posts with label Hallowed Secularism and Higher Law. Show all posts
Thursday, August 15, 2019
Tuesday, October 16, 2018
Pittsburgh Foundation Grant
10/16/2018--Last week the Pittsburgh Foundation approved a $5000 grant to fund a pilot four podcasts in what I hope will become the Bends Toward Justice Podcast Series of 50 conversations with a variety of Americans about the teaching of Martin Luther King, Jr., that "the arc of the moral universe is long, but it bends toward justice. In my view, as readers of this blog know, American public life is in decline, and private life too, because of the decline of moral realism. These conversations represent an attempt to reintroduce justice and history as serious cultural categories.
The podcast series is a part of the Truth/Justice/Democracy Initiative intended to change American public life. Truth refers to the billboard in Erie, PA, this summer that focused on lying in politics. It announced that "tax cuts threaten social security." It was aimed at a particular lie--that tax cuts pay for themselves--but not only lying by one Party. I have Democratic Party lies, also, such as the we keep our doctors and plans under Obamacare, a claim President Obama undoubtedly believed at first, but kept repeating when he knew it was not going to be true.
The podcast series represents the justice part of the initiative.
The Democracy part has to do with all of my work recently about the looming threat to democracy. The immediate issue is partisanship that overshadows truth. That Republicans will not criticize President Trump about global warming. That Democrats will not acknowledge any good that President Trump is doing. My answer is the formation of a pro-democracy caucus among law professors promising to call out their own side. (Not much luck so far).
Here is the billboard and me in front of it. Photo by P. Ledewitz.
The podcast series is a part of the Truth/Justice/Democracy Initiative intended to change American public life. Truth refers to the billboard in Erie, PA, this summer that focused on lying in politics. It announced that "tax cuts threaten social security." It was aimed at a particular lie--that tax cuts pay for themselves--but not only lying by one Party. I have Democratic Party lies, also, such as the we keep our doctors and plans under Obamacare, a claim President Obama undoubtedly believed at first, but kept repeating when he knew it was not going to be true.
The podcast series represents the justice part of the initiative.
The Democracy part has to do with all of my work recently about the looming threat to democracy. The immediate issue is partisanship that overshadows truth. That Republicans will not criticize President Trump about global warming. That Democrats will not acknowledge any good that President Trump is doing. My answer is the formation of a pro-democracy caucus among law professors promising to call out their own side. (Not much luck so far).
Here is the billboard and me in front of it. Photo by P. Ledewitz.
Thursday, August 30, 2018
Needed: A New Ontology and Epistemology
8/30/2018—Now there is an accessible slogan for the 21st century. Basically, a new ontology and epistemology means a new way of thinking about what there is and what we can know. With the death of god, announced by Nietzsche in The Gay Science in 1882, the West became materialistic in what was real and sensory in how we could know things. And this is true for most people, including most religious people. And this is both how and why science became so powerful. This worldview says that matter is all that is real and we learn things only through the five senses.
This way of relating to the universe was a long time coming. David Hume, who died in 1776, a hundred years before Nietzsche’s announcement, was a key figure. But with this ontology and this epistemology, there not only cannot be any god, there cannot be any invisible thing-—justice, goodness beauty and truth become things we agree with rather than descriptions of anything real in the universe. And the universe becomes a collection of forces without meaning or purpose. You get a headline like the one last summer in the New York Times, The Universe Doesn’t Care About Your Purpose.
Religion under this worldview becomes a kind of fiction, incapable of providing knowledge about the world.
Law is dominated by this current ontology and epistemology. Even someone like Ronald Dworkin, who wanted to claim that goodness was real in some sense, felt he had to pay homage to Hume. Dworkin therefore wrote self-refuting nonsense toward the end of his life.
I thought all this was an insurmountable dilemma. That is even why I left Judaism. Its talk of God became unreal to me.
People have a hard time seeing what this has to do with President Donald Trump. But to me it is obvious that the next step in our current worldview was the death of truth. Once truth is gone as something reliable, I lose the common ground from which to reach out to my political opponents. We then have to hate each other because only winning counts.
Before, years before, there was lying and cruelty in politics, but it took place within a context of meaning and truth. Now, there is lying and cruelty within a context of chaos and chance.
What I did not realize is that the current worldview is not at all insurmountable. In fact it was surmounted by thinkers like Bernie Lonergan, Alfred North Whitehead and Martin Heidegger. Their thinking does not yet seem to have become popularized in the culture, however. American lawyers were not all lucky enough to have a teacher like Robert Taylor. Nevertheless, it will happen. In a hundred years, it will no longer be thought strange to say that the world is more than matter and not mean that there is a supernatural realm.
This way of relating to the universe was a long time coming. David Hume, who died in 1776, a hundred years before Nietzsche’s announcement, was a key figure. But with this ontology and this epistemology, there not only cannot be any god, there cannot be any invisible thing-—justice, goodness beauty and truth become things we agree with rather than descriptions of anything real in the universe. And the universe becomes a collection of forces without meaning or purpose. You get a headline like the one last summer in the New York Times, The Universe Doesn’t Care About Your Purpose.
Religion under this worldview becomes a kind of fiction, incapable of providing knowledge about the world.
Law is dominated by this current ontology and epistemology. Even someone like Ronald Dworkin, who wanted to claim that goodness was real in some sense, felt he had to pay homage to Hume. Dworkin therefore wrote self-refuting nonsense toward the end of his life.
I thought all this was an insurmountable dilemma. That is even why I left Judaism. Its talk of God became unreal to me.
People have a hard time seeing what this has to do with President Donald Trump. But to me it is obvious that the next step in our current worldview was the death of truth. Once truth is gone as something reliable, I lose the common ground from which to reach out to my political opponents. We then have to hate each other because only winning counts.
Before, years before, there was lying and cruelty in politics, but it took place within a context of meaning and truth. Now, there is lying and cruelty within a context of chaos and chance.
What I did not realize is that the current worldview is not at all insurmountable. In fact it was surmounted by thinkers like Bernie Lonergan, Alfred North Whitehead and Martin Heidegger. Their thinking does not yet seem to have become popularized in the culture, however. American lawyers were not all lucky enough to have a teacher like Robert Taylor. Nevertheless, it will happen. In a hundred years, it will no longer be thought strange to say that the world is more than matter and not mean that there is a supernatural realm.
Wednesday, March 15, 2017
My Talk at Nootbaar
3/15/2017--Last Friday, I gave a talk at the Nootbaar Conference as part of a panel that was addressing religious critiques of law. My topic was The Religious Critique of Constitutional Jurisprudence. The talk represented a challenge to the religious community, and to all those committed to forms of moral realism, to confront the nihilism and value relativism of the field of constitutional interpretation. Below is a form of the talk.
What is needed is a Nootbaar-like Institute to study the Future of Secularism. Any reader is welcome to help me create that.
************
The Religious Critique of Constitutional Jurisprudence
Nootbaar Conference, 2017
Bruce Ledewitz
What is the religious critique of constitutional jurisprudence? Does it consist of religious criticisms of the content of particular decisions by the US Supreme Court?
Does it consist of religious criticism of the demands of the State on religious believers?
Does it consist of a more general resistance to the growing assumption in the legal academy that religion is irrational and even harmful?
All these positions could be called religious critiques of constitutional jurisprudence. But none of them look at constitutional jurisprudence in its deepest dimension. What does constitutional jurisprudence assume about the nature of reality?
There is an urgency today to look at law in its deepest dimension because of the emergency that has befallen American public life. After a Presidential campaign between two candidates widely regarded as untruthful, rife with false news and political manipulation, the American public distrusts all institutions. There is a feeling, and not just among Trump voters, that we are being lied to.
Technology has played a role in this distrust and we must remember the somber warning of Martin Heidegger that it is unclear whether democracy is at all suited for a technological age.
But what about law? Have we lawyers played a role in this emergency? Marbury v. Madison largely placed the care of constitutional democracy into the keeping of lawyers. How likely is it, then, that we have played no role?
When we look at the depth dimension of constitutional jurisprudence, what do we see? All of the Justices proclaim that they are faithful to the Constitution and, within that restraint, that they promote democracy. Yet, these professed commitments are only partial and to some extent rhetorical. They are not foundational.
The foundation of constitutional jurisprudence today is the view of all of the Justices about values. Values are seen in a relativistic fashion, in which it is not possible to speak of truth or even a hierarchy. Values are subjective and they do not pertain to knowledge. We have surrendered truth. This understanding shapes everything about the field.
This understanding is why, in his dissent in the Casey abortion case in 1992, Justice Antonin Scalia criticized the majority’s acceptance of the fundamental right of abortion on the ground that this represented a value judgment with which many Americans would disagree. And the value judgments of those Americans are just as good as those of the Justices on the Court. Justice Scalia pointed to the politicization of the Supreme Court nomination process as a consequence of the Court’s entering into value judgments. He wrote that when courts do lawyers’ work instead, reading text and discerning our society's traditional understanding of that text--the public pretty much left us alone.
This position, that value judgments can only reflect differing preferences, reflects a legal positivism that proclaims a fundamental distinction between law and morality. But, as is usual with such positivism, it cannot account for why any particular course should be chosen. So, the view that Justices should not make value judgments is itself a value judgment that is not directed by any legal source.
The subjective quality of values supported a position taken ten years later, in 2003, by the Court in Lawrence v. Texas, which struck down punishment of consensual gay sexual relations, that, quoting an earlier dissent by Justice Stevens, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice… . Justice Scalia roundly criticized that holding, and rightly so, for its radical departure from the tradition of a rule of law, which has always been understood as having something to do with morality. But, as a legal positivist, Justice Scalia should have conceded that a moral claim could not serve as a rational basis for a law, since morality is a matter of opinion.
At the same time in 1992 that the conservative bloc was proclaiming the relativism of values in the Casey dissent, the liberal bloc was pronouncing secular morality to be nothing more than a matter of human choice in Lee v Weisman. I called this juxtaposition of opinions in a recent law review article The Five Days in June When Values Died in American Law because all of the Justices joined either the Scalia dissent in Casey or the Justice Anthony Kennedy majority opinion in Lee.
The issue in Lee had to do with the constitutionality of prayers at a high school graduation, actually a middle school graduation, and the defense that since the prayers involved were nondenominational, they did not violate the Establishment Clause. Justice Kennedy rejected this defense and in finding the prayers unconstitutional, he wrote:
"If common ground can be defined which permits once conflicting faiths to express the shared conviction that there is an ethic and a morality which transcend human invention, the sense of community and purpose sought by all decent societies might be advanced. But though the First Amendment does not allow the government to stifle prayers which aspire to these ends, neither does it permit the government to undertake that task for itself."
Lee demonstrates the death of values in American law. If religion involves claims about the independence of morality from the opinions of human beings—an activity the opinion says government may not “undertake”—then secular instruments like law must not involve claims of value objectivity and moral realism. A law like ours, which must be based on secular sources, cannot make the claim that values “transcend[] human invention.” This is the same view of values as that espoused by Justice Scalia in his Casey dissent.
I agree with Justice Kennedy that the commitment that ethics and morality transcend human invention is religious in nature, is the commitment of all religious traditions, indeed of all traditions of moral realism. Thus, the religious critique of constitutional jurisprudence should consist in the rejection of its relativist foundation. Religious law professors, and their fellow travelers in moral realism, should insist that the meaning of the universe is not a reflection of human choice. We should be insisting in our writing and to our students that the universe—reality—is founded on an intelligence and an order that human law must reflect, if law is going to promote human flourishing.
This religious critique would also speak to the emergency that has overtaken American public life—an emergency that roots in the same value skeptical foundation as does constitutional jurisprudence: the unconscious assumption that, with the death of God, there is no underlying order to anything. In a universe of chaos and chance, there is no ground for trust and no room for truth. In such a universe, all institutions will be under suspicion, as indeed they are today. In such a universe, there will be not any shared measures of verification, even for what we might call factual claims. Such a universe cannot sustain democratic constitutionalism.
Why has this not been said, and loudly? The fact that these positions could be taken by Justices on the Supreme Court, without serious objection from the legal academy, when even brief reflection demonstrates their radical and unacceptable nature, shows that law professors have become so much a part of the ideological divisions on the Supreme Court that we have lost our capacity for genuine critique. We are only interested in how cases come out. And we won’t break ranks with our political side. At least teachers in religiously affiliated law schools should not be partisan in this way.
We are in a very bad situation and I am not here to propose some simple solution. But I will close with the following observation. At the January AALS annual meeting, there was a plenary session about the incoming Trump administration. It was all gloom and doom. Well-known liberal dean Erwin Chemerinsky solemnly proclaimed that Donald Trump does not believe in the rule of law and does not believe in truth. I almost grabbed the microphone to respond that Donald Trump should then be teaching in a law school, because we have been teaching value skepticism since the 1950’s. As a discipline, law has to stop doing that and this Conference is the proper place to promote that recognition.
What is needed is a Nootbaar-like Institute to study the Future of Secularism. Any reader is welcome to help me create that.
************
The Religious Critique of Constitutional Jurisprudence
Nootbaar Conference, 2017
Bruce Ledewitz
What is the religious critique of constitutional jurisprudence? Does it consist of religious criticisms of the content of particular decisions by the US Supreme Court?
Does it consist of religious criticism of the demands of the State on religious believers?
Does it consist of a more general resistance to the growing assumption in the legal academy that religion is irrational and even harmful?
All these positions could be called religious critiques of constitutional jurisprudence. But none of them look at constitutional jurisprudence in its deepest dimension. What does constitutional jurisprudence assume about the nature of reality?
There is an urgency today to look at law in its deepest dimension because of the emergency that has befallen American public life. After a Presidential campaign between two candidates widely regarded as untruthful, rife with false news and political manipulation, the American public distrusts all institutions. There is a feeling, and not just among Trump voters, that we are being lied to.
Technology has played a role in this distrust and we must remember the somber warning of Martin Heidegger that it is unclear whether democracy is at all suited for a technological age.
But what about law? Have we lawyers played a role in this emergency? Marbury v. Madison largely placed the care of constitutional democracy into the keeping of lawyers. How likely is it, then, that we have played no role?
When we look at the depth dimension of constitutional jurisprudence, what do we see? All of the Justices proclaim that they are faithful to the Constitution and, within that restraint, that they promote democracy. Yet, these professed commitments are only partial and to some extent rhetorical. They are not foundational.
The foundation of constitutional jurisprudence today is the view of all of the Justices about values. Values are seen in a relativistic fashion, in which it is not possible to speak of truth or even a hierarchy. Values are subjective and they do not pertain to knowledge. We have surrendered truth. This understanding shapes everything about the field.
This understanding is why, in his dissent in the Casey abortion case in 1992, Justice Antonin Scalia criticized the majority’s acceptance of the fundamental right of abortion on the ground that this represented a value judgment with which many Americans would disagree. And the value judgments of those Americans are just as good as those of the Justices on the Court. Justice Scalia pointed to the politicization of the Supreme Court nomination process as a consequence of the Court’s entering into value judgments. He wrote that when courts do lawyers’ work instead, reading text and discerning our society's traditional understanding of that text--the public pretty much left us alone.
This position, that value judgments can only reflect differing preferences, reflects a legal positivism that proclaims a fundamental distinction between law and morality. But, as is usual with such positivism, it cannot account for why any particular course should be chosen. So, the view that Justices should not make value judgments is itself a value judgment that is not directed by any legal source.
The subjective quality of values supported a position taken ten years later, in 2003, by the Court in Lawrence v. Texas, which struck down punishment of consensual gay sexual relations, that, quoting an earlier dissent by Justice Stevens, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice… . Justice Scalia roundly criticized that holding, and rightly so, for its radical departure from the tradition of a rule of law, which has always been understood as having something to do with morality. But, as a legal positivist, Justice Scalia should have conceded that a moral claim could not serve as a rational basis for a law, since morality is a matter of opinion.
At the same time in 1992 that the conservative bloc was proclaiming the relativism of values in the Casey dissent, the liberal bloc was pronouncing secular morality to be nothing more than a matter of human choice in Lee v Weisman. I called this juxtaposition of opinions in a recent law review article The Five Days in June When Values Died in American Law because all of the Justices joined either the Scalia dissent in Casey or the Justice Anthony Kennedy majority opinion in Lee.
The issue in Lee had to do with the constitutionality of prayers at a high school graduation, actually a middle school graduation, and the defense that since the prayers involved were nondenominational, they did not violate the Establishment Clause. Justice Kennedy rejected this defense and in finding the prayers unconstitutional, he wrote:
"If common ground can be defined which permits once conflicting faiths to express the shared conviction that there is an ethic and a morality which transcend human invention, the sense of community and purpose sought by all decent societies might be advanced. But though the First Amendment does not allow the government to stifle prayers which aspire to these ends, neither does it permit the government to undertake that task for itself."
Lee demonstrates the death of values in American law. If religion involves claims about the independence of morality from the opinions of human beings—an activity the opinion says government may not “undertake”—then secular instruments like law must not involve claims of value objectivity and moral realism. A law like ours, which must be based on secular sources, cannot make the claim that values “transcend[] human invention.” This is the same view of values as that espoused by Justice Scalia in his Casey dissent.
I agree with Justice Kennedy that the commitment that ethics and morality transcend human invention is religious in nature, is the commitment of all religious traditions, indeed of all traditions of moral realism. Thus, the religious critique of constitutional jurisprudence should consist in the rejection of its relativist foundation. Religious law professors, and their fellow travelers in moral realism, should insist that the meaning of the universe is not a reflection of human choice. We should be insisting in our writing and to our students that the universe—reality—is founded on an intelligence and an order that human law must reflect, if law is going to promote human flourishing.
This religious critique would also speak to the emergency that has overtaken American public life—an emergency that roots in the same value skeptical foundation as does constitutional jurisprudence: the unconscious assumption that, with the death of God, there is no underlying order to anything. In a universe of chaos and chance, there is no ground for trust and no room for truth. In such a universe, all institutions will be under suspicion, as indeed they are today. In such a universe, there will be not any shared measures of verification, even for what we might call factual claims. Such a universe cannot sustain democratic constitutionalism.
Why has this not been said, and loudly? The fact that these positions could be taken by Justices on the Supreme Court, without serious objection from the legal academy, when even brief reflection demonstrates their radical and unacceptable nature, shows that law professors have become so much a part of the ideological divisions on the Supreme Court that we have lost our capacity for genuine critique. We are only interested in how cases come out. And we won’t break ranks with our political side. At least teachers in religiously affiliated law schools should not be partisan in this way.
We are in a very bad situation and I am not here to propose some simple solution. But I will close with the following observation. At the January AALS annual meeting, there was a plenary session about the incoming Trump administration. It was all gloom and doom. Well-known liberal dean Erwin Chemerinsky solemnly proclaimed that Donald Trump does not believe in the rule of law and does not believe in truth. I almost grabbed the microphone to respond that Donald Trump should then be teaching in a law school, because we have been teaching value skepticism since the 1950’s. As a discipline, law has to stop doing that and this Conference is the proper place to promote that recognition.
Wednesday, April 13, 2016
The Future of Law School
4/13/2016--The ABA has been asking law schools to engage in what they call outcomes assessment. The idea is to operationalize what law schools think they are teaching and then to measure educational success.
Except this is a juvenile task--at least the way it has been presented so far. The bar exam is already a test of whether students learn the substantive law and can communicate analysis in written form. The exam is not everything, but it will do. And students can tell whether they are getting their money's worth on their own.
But, after hearing about this from some experts, I wondered whether the question of outcome might be more deeply posed. Here is what I came up with for Duquesne Law School.
************
I don’t know whether what the ABA is going to be asking of us is trivial or unnecessary or both, but it has provoked a question in me that perhaps justifies last Friday’s exercise: what is our goal in educating students at Duquesne Law School? It has always been true that Duquesne educates competent, responsible attorneys whose record of public service is unequaled, certainly unequaled by any law school remotely similar to Duquesne in size and resources.
Now, in a genuinely dark time in American public life, perhaps this tradition should be noted and emphasized in a more determinate way as an intentional institutional outcome, thus giving substance to the ABA’s exercise.
To suggest this as part of the long-range response to the ABA, I propose the following remarks.
*****************************
Outcome: Students will graduate from Duquesne Law School with values, knowledge and skills to help solve the crisis in American public life.
That there is a crisis in American public life is hard to dispute. This crisis is characterized by hyper partisanship, political gridlock and a toxic and trivialized public square. The constitutional tradition has always placed the legal profession at the center of American public life, with a self-recognized responsibility for the health of self-government. In a sense, the client of the American Law School is government of the people, by the people, and for the people. This form of service is consistent with Duquesne Law School’s own mission and the school’s professional obligations. To serve this client, Duquese Law School must itself be a community of faculty and staff that is open and intelligent. Only in that way will our graduates become open and intelligent.
***************************
Values: Students will exhibit civility, commitment to the rule of law, a greater commitment to the welfare of the people, responsibility for self-directed, open inquiry, respect for rational analysis and dedication to a life of service to the public good at the different levels of client, legal system, nation and humanity.
I chose civility rather than tolerance because, while civility of discourse is necessary if each member of the community is to be free to engage in open inquiry, there should not be tolerance of bad ideas. Rather, the Law School’s aim should be to foster sound judgment. The rule of law is an important professional commitment, but the Law School motto is a reminder that even the rule of law must not become an ideology on which lives are sacrificed. Open inquiry is hard to maintain in a world brimming with forms of political correctness on all sides and the Law School has not always lived up to this value. Nevertheless, it must remain a realistic goal to be fostered by faculty recruitment as well as by faculty conduct. At this professional level, student self-direction is required, which is to be encouraged by faculty as model as well as instructor.
**************************************
Knowledge: Students will gain familiarity with the vocabulary, substance, processes and methods of American law, the principles of institution building, mediation and conflict resolution and, most important, the science of human flourishing, including the spiritual life of humanity and the role of humanity in the natural world.
All law students must graduate from law school with a working knowledge of the American legal system in all of its phases. Duquesne Law School graduates must also become expert in sustainable institution-building and conflict resolution that promotes justice. Nevertheless, very little knowledge is generated in law school. Most of the knowledge that is needed for legal education will come from the natural and social sciences. But this knowledge must include respect for spiritual life and the natural world.
***********************************
Skills: Students will be competent in both the adversarial system and forms of mediation and will develop the capacity to judge when and to what extent each is needed to promote the public good in all of its levels. Students will be able to craft transactional devices needed to operationalize legal rights and duties. Students will have simulated or actual experience in navigating the legal system, structures of government and private economic and social organizations.
Not every student will gain equal levels of skill in all of these areas. But all of these skills are necessary for the graduating student and the curriculum must foster the acquiring of these skills to the extent possible.
Except this is a juvenile task--at least the way it has been presented so far. The bar exam is already a test of whether students learn the substantive law and can communicate analysis in written form. The exam is not everything, but it will do. And students can tell whether they are getting their money's worth on their own.
But, after hearing about this from some experts, I wondered whether the question of outcome might be more deeply posed. Here is what I came up with for Duquesne Law School.
************
I don’t know whether what the ABA is going to be asking of us is trivial or unnecessary or both, but it has provoked a question in me that perhaps justifies last Friday’s exercise: what is our goal in educating students at Duquesne Law School? It has always been true that Duquesne educates competent, responsible attorneys whose record of public service is unequaled, certainly unequaled by any law school remotely similar to Duquesne in size and resources.
Now, in a genuinely dark time in American public life, perhaps this tradition should be noted and emphasized in a more determinate way as an intentional institutional outcome, thus giving substance to the ABA’s exercise.
To suggest this as part of the long-range response to the ABA, I propose the following remarks.
*****************************
Outcome: Students will graduate from Duquesne Law School with values, knowledge and skills to help solve the crisis in American public life.
That there is a crisis in American public life is hard to dispute. This crisis is characterized by hyper partisanship, political gridlock and a toxic and trivialized public square. The constitutional tradition has always placed the legal profession at the center of American public life, with a self-recognized responsibility for the health of self-government. In a sense, the client of the American Law School is government of the people, by the people, and for the people. This form of service is consistent with Duquesne Law School’s own mission and the school’s professional obligations. To serve this client, Duquese Law School must itself be a community of faculty and staff that is open and intelligent. Only in that way will our graduates become open and intelligent.
***************************
Values: Students will exhibit civility, commitment to the rule of law, a greater commitment to the welfare of the people, responsibility for self-directed, open inquiry, respect for rational analysis and dedication to a life of service to the public good at the different levels of client, legal system, nation and humanity.
I chose civility rather than tolerance because, while civility of discourse is necessary if each member of the community is to be free to engage in open inquiry, there should not be tolerance of bad ideas. Rather, the Law School’s aim should be to foster sound judgment. The rule of law is an important professional commitment, but the Law School motto is a reminder that even the rule of law must not become an ideology on which lives are sacrificed. Open inquiry is hard to maintain in a world brimming with forms of political correctness on all sides and the Law School has not always lived up to this value. Nevertheless, it must remain a realistic goal to be fostered by faculty recruitment as well as by faculty conduct. At this professional level, student self-direction is required, which is to be encouraged by faculty as model as well as instructor.
**************************************
Knowledge: Students will gain familiarity with the vocabulary, substance, processes and methods of American law, the principles of institution building, mediation and conflict resolution and, most important, the science of human flourishing, including the spiritual life of humanity and the role of humanity in the natural world.
All law students must graduate from law school with a working knowledge of the American legal system in all of its phases. Duquesne Law School graduates must also become expert in sustainable institution-building and conflict resolution that promotes justice. Nevertheless, very little knowledge is generated in law school. Most of the knowledge that is needed for legal education will come from the natural and social sciences. But this knowledge must include respect for spiritual life and the natural world.
***********************************
Skills: Students will be competent in both the adversarial system and forms of mediation and will develop the capacity to judge when and to what extent each is needed to promote the public good in all of its levels. Students will be able to craft transactional devices needed to operationalize legal rights and duties. Students will have simulated or actual experience in navigating the legal system, structures of government and private economic and social organizations.
Not every student will gain equal levels of skill in all of these areas. But all of these skills are necessary for the graduating student and the curriculum must foster the acquiring of these skills to the extent possible.
Tuesday, April 29, 2014
The Fight Over the Personhood of Animals.
4/29/2014—If you want to see law at least a little as it used to be, look no further than Steven M. Wise, whose litigation on behalf of the legal rights of certain animals was featured in the New York Times on Sunday. (Story here)
What makes the story particularly significant jurisprudentially is that Wise is using not the Constitution, but the common law method of writs and incremental steps to recognize these legal rights. And it seems that the foundation of these steps is “evolving public morality” based on new scientific learning about the mental life and capacities of at least some animals.
What is not clear to me is the basis of this movement. Wise’s intellectual hero seems to be Oliver Wendell Holmes and his realist jurisprudence. Wise criticizes teleology because it led to a human dominated universe, as opposed to the utilitarian traditions of the ancient world. (There is much to Wise’s thinking I have to learn about).
On the other hand, Wise criticizes legal positivism, which he describes as the idea that rights come from the State. Universal human rights are grounded in the way human beings are—they are in that sense derived not created.
I guess my question is whether moral evolution is getting somewhere. Some Darwinian theorists deny that evolution can properly be thought of as having a goal or hierarchy. Not everything moves toward greater consciousness. It depends on the needs of an environmental niche.
But moral evolution does sound like it has a direction, a telos. Recognizing the legal rights of animals would then be a part of the kind of teleological thinking Wise criticizes. We are getting closer to the good.
Or, does Wise believe we should recognize the legal rights of animals only to be logically consistent? Humans have rights and some animals are like humans. Therefore some animals deserve rights.
Wise seems impatient with such musings. He argues that human rights are recognized only on the ground that the “why” of such rights is not raised. But if that is the case, then the alternative to legal positivism by the State is just a different form of legal positivism by the rest of us. Rights are just a posit. If that is the case, can they really last?
What makes the story particularly significant jurisprudentially is that Wise is using not the Constitution, but the common law method of writs and incremental steps to recognize these legal rights. And it seems that the foundation of these steps is “evolving public morality” based on new scientific learning about the mental life and capacities of at least some animals.
What is not clear to me is the basis of this movement. Wise’s intellectual hero seems to be Oliver Wendell Holmes and his realist jurisprudence. Wise criticizes teleology because it led to a human dominated universe, as opposed to the utilitarian traditions of the ancient world. (There is much to Wise’s thinking I have to learn about).
On the other hand, Wise criticizes legal positivism, which he describes as the idea that rights come from the State. Universal human rights are grounded in the way human beings are—they are in that sense derived not created.
I guess my question is whether moral evolution is getting somewhere. Some Darwinian theorists deny that evolution can properly be thought of as having a goal or hierarchy. Not everything moves toward greater consciousness. It depends on the needs of an environmental niche.
But moral evolution does sound like it has a direction, a telos. Recognizing the legal rights of animals would then be a part of the kind of teleological thinking Wise criticizes. We are getting closer to the good.
Or, does Wise believe we should recognize the legal rights of animals only to be logically consistent? Humans have rights and some animals are like humans. Therefore some animals deserve rights.
Wise seems impatient with such musings. He argues that human rights are recognized only on the ground that the “why” of such rights is not raised. But if that is the case, then the alternative to legal positivism by the State is just a different form of legal positivism by the rest of us. Rights are just a posit. If that is the case, can they really last?
Tuesday, July 5, 2011
Happy Fourth of July
7/5/2011—This entry appears one day late because the dog is afraid of fireworks—and thunder--of which we had a lot yesterday.
In the movie 1776, Thomas Jefferson is portrayed as being asked where the rights of the colonists come from? If they come from the King and Parliament or even from the British Constitution, what is the justification for revolution even if they are taken away?
Jefferson replies that rights come nature. We are born with them. That is why they are both self-evident from our natures and unalienable. And the denial of these rights renders King George a tyrant, objectively speaking.
The final language of the Declaration of Independence used a different formulation: endowed by their Creator. Undoubtedly, this shift was meant to capture the imagination of the Christian mind with the claim that our rights come from God.
On the other hand, the word Creator is ambiguous in the sense that we all come from nature. The universe is our Creator, after all.
The source is not clarified so that it can mean different things to different people. The source of rights was not the point of the Declaration. The point was that rights are real so that there denial is wrong. It is not a matter of opinion.
Because we have a greater sense of our capacity to fool ourselves and act in mere self-interest when we pretend to be acting nobly and because we have a greater sense of change in history and because we have a greater sense of cultural diversity than did our founders, we are nervous about claims to objectivity.
But I believe this is temporary and that humanity will reclaim its balance. We often fool ourselves, but not always. History clarifies and certain values endure. Cultures contain more commonality than difference. And we can appreciate what is valuable in each culture.
So, let’s not be quick to downplay the Declaration of Independence. It is our founding document and a monument to both liberty and democracy. Human beings are not things but citizens of the universe. We have dignity and rights that must be respected—as well as responsibilities that we are neglecting. We vote on these things but we do not ultimately decide them. Our rights and our responsibilities are objective.
In the movie 1776, Thomas Jefferson is portrayed as being asked where the rights of the colonists come from? If they come from the King and Parliament or even from the British Constitution, what is the justification for revolution even if they are taken away?
Jefferson replies that rights come nature. We are born with them. That is why they are both self-evident from our natures and unalienable. And the denial of these rights renders King George a tyrant, objectively speaking.
The final language of the Declaration of Independence used a different formulation: endowed by their Creator. Undoubtedly, this shift was meant to capture the imagination of the Christian mind with the claim that our rights come from God.
On the other hand, the word Creator is ambiguous in the sense that we all come from nature. The universe is our Creator, after all.
The source is not clarified so that it can mean different things to different people. The source of rights was not the point of the Declaration. The point was that rights are real so that there denial is wrong. It is not a matter of opinion.
Because we have a greater sense of our capacity to fool ourselves and act in mere self-interest when we pretend to be acting nobly and because we have a greater sense of change in history and because we have a greater sense of cultural diversity than did our founders, we are nervous about claims to objectivity.
But I believe this is temporary and that humanity will reclaim its balance. We often fool ourselves, but not always. History clarifies and certain values endure. Cultures contain more commonality than difference. And we can appreciate what is valuable in each culture.
So, let’s not be quick to downplay the Declaration of Independence. It is our founding document and a monument to both liberty and democracy. Human beings are not things but citizens of the universe. We have dignity and rights that must be respected—as well as responsibilities that we are neglecting. We vote on these things but we do not ultimately decide them. Our rights and our responsibilities are objective.
Sunday, December 5, 2010
Seeking Common Ground: A Secular Statement
12/5/2010—My article, Seeking Common Ground: A Secular Statement, has now been published by Hastings Constitutional Law Quarterly. It is available to anyone at bepress (here). The article introduces and develops themes from my forthcoming book, Church, State, and the Crisis in American Secularism, which will be published by Indiana University Press in May 2011.
The article tries to show that objective morality—-the idea that some things are actually wrong rather than just wrong in my opinion—-is a commitment available to religious believers and nonbelievers. Can a person believe in objective morality without believing in God? Sure. The noted atheist Sam Harris made just such an argument in The Moral Landscape: How Science Can Determine Human Values. (I don’t think science can do that but that’s another issue for another time).
The threat of nihilism is not something to be taken lightly. The article begins with a quotation from Justice Anthony Kennedy’s opinion in Lee v. Weisman, the case that prohibited prayers at public high school graduations:
"We are asked to recognize the existence of a practice of nonsectarian prayer, prayer within the embrace of what is known as the Judeo-Christian tradition… . If common ground can be defined which permits once conflicting faiths to express the shared conviction that there is an ethic and a morality which transcend human invention, the sense of community and purpose sought by all decent societies might be advanced. But though the First Amendment does not allow the government to stifle prayers which aspire to these ends, neither does it permit the government to undertake that task for itself."
Morality that transcends human invention is something I believe in. I stake my life on it. So do many of you. So does Justice Kennedy. We mistakenly think that religious belief is the crucial issue. It is not. Right and wrong are closer to the crucial issue and there we can find common ground.
Here is the abstract of the article:
Religion has its uniqueness, which is feared in the Establishment Clause and protected in the Free Exercise Clause. But religion is also part of a larger tradition that transcends religion and includes much of philosophy and political theory. That tradition was characterized by C.S. Lewis as the “doctrine of objective value”. It has been called by other names, such as civil religion, higher law, natural law, even religious naturalism. That tradition may be established by the government without violating the Establishment Clause and its practice is protected more by free speech than by free exercise. As the reference to “their Creator” as the source of rights in the Declaration of Independence illustrates, that tradition can be symbolized through religious imagery. That tradition is currently promoted through displays of the Ten Commandments and public references to God. But the tradition is not religion. It shares common ground with religion.
The failure to recognize this tradition as separate from religion, and to celebrate it, has led to numerous mistaken commitments. It has led the New Atheism toward relativism and even nihilism. It has obscured the natural law aspect of the Constitution exemplified in the Ninth Amendment, a natural law orientation that is anything but “godless”. It has caused the Supreme Court to overlook the “common ground” of values clearly present in American society and history. It has misled Justice Scalia into promoting the worship of the biblical God, when other formulations of God-language would alleviate constitutional disputes about religious imagery without sacrificing societal thanksgiving and even praise. In general, this failure has prevented the celebration of common meaning between religious believers and many nonbelievers.
Use of God-language and the Ten Commandments to promote this tradition does not lead to debased, “bleached faith” because religious believers agree that there is common ground with this tradition, although for the believer it is religion that represents the larger tradition and it is the nonbelievers who share only partly in the Truth. In Christianity, for example, the “hidden Christian” and the human conscience are said to represent common ground with nonbelievers and non-Christians.
The recognition of this common ground will not only clarify and resolve many Establishment Clause issues, but will allow formation of new political coalitions, as secularists and religious believers come to value their shared commitments. Such recognition will also deepen secularism itself and reorient it to the perennial questions of human existence.
The article tries to show that objective morality—-the idea that some things are actually wrong rather than just wrong in my opinion—-is a commitment available to religious believers and nonbelievers. Can a person believe in objective morality without believing in God? Sure. The noted atheist Sam Harris made just such an argument in The Moral Landscape: How Science Can Determine Human Values. (I don’t think science can do that but that’s another issue for another time).
The threat of nihilism is not something to be taken lightly. The article begins with a quotation from Justice Anthony Kennedy’s opinion in Lee v. Weisman, the case that prohibited prayers at public high school graduations:
"We are asked to recognize the existence of a practice of nonsectarian prayer, prayer within the embrace of what is known as the Judeo-Christian tradition… . If common ground can be defined which permits once conflicting faiths to express the shared conviction that there is an ethic and a morality which transcend human invention, the sense of community and purpose sought by all decent societies might be advanced. But though the First Amendment does not allow the government to stifle prayers which aspire to these ends, neither does it permit the government to undertake that task for itself."
Morality that transcends human invention is something I believe in. I stake my life on it. So do many of you. So does Justice Kennedy. We mistakenly think that religious belief is the crucial issue. It is not. Right and wrong are closer to the crucial issue and there we can find common ground.
Here is the abstract of the article:
Religion has its uniqueness, which is feared in the Establishment Clause and protected in the Free Exercise Clause. But religion is also part of a larger tradition that transcends religion and includes much of philosophy and political theory. That tradition was characterized by C.S. Lewis as the “doctrine of objective value”. It has been called by other names, such as civil religion, higher law, natural law, even religious naturalism. That tradition may be established by the government without violating the Establishment Clause and its practice is protected more by free speech than by free exercise. As the reference to “their Creator” as the source of rights in the Declaration of Independence illustrates, that tradition can be symbolized through religious imagery. That tradition is currently promoted through displays of the Ten Commandments and public references to God. But the tradition is not religion. It shares common ground with religion.
The failure to recognize this tradition as separate from religion, and to celebrate it, has led to numerous mistaken commitments. It has led the New Atheism toward relativism and even nihilism. It has obscured the natural law aspect of the Constitution exemplified in the Ninth Amendment, a natural law orientation that is anything but “godless”. It has caused the Supreme Court to overlook the “common ground” of values clearly present in American society and history. It has misled Justice Scalia into promoting the worship of the biblical God, when other formulations of God-language would alleviate constitutional disputes about religious imagery without sacrificing societal thanksgiving and even praise. In general, this failure has prevented the celebration of common meaning between religious believers and many nonbelievers.
Use of God-language and the Ten Commandments to promote this tradition does not lead to debased, “bleached faith” because religious believers agree that there is common ground with this tradition, although for the believer it is religion that represents the larger tradition and it is the nonbelievers who share only partly in the Truth. In Christianity, for example, the “hidden Christian” and the human conscience are said to represent common ground with nonbelievers and non-Christians.
The recognition of this common ground will not only clarify and resolve many Establishment Clause issues, but will allow formation of new political coalitions, as secularists and religious believers come to value their shared commitments. Such recognition will also deepen secularism itself and reorient it to the perennial questions of human existence.
Wednesday, April 21, 2010
Higher Law in the Public Square
4/21/2010—Indiana University Press will be publishing my book, Higher Law in the Public Square: How the Higher Law Tradition Can Resolve the Establishment Clause Crisis and Save Secularism. The book attempts to formulate a new approach to a range of Establishment Clause issues, such as the “under God” phrase in the Pledge of Allegiance, through the lens of objective values that both religious believers and secularists can embrace. No publication date has yet been announced.
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