A while back I posted about potential topics for a constitutional theory term paper. I ended up choosing the fifth option (What is the purpose of constitutional theory? Why do people do constitutional theory?). It was both my favorite and favorite of everyone who provided feedback. The paper has veered more toward an account of authority (legitimacy), though the purpose of constitutional theory is still a factor. That is, I believe constitutional theory has a role to play in an account of authority. I submitted a first draft last week for comments. The paper is still very rough. Nonetheless, my professor’s final comment was: “Wow! This is the most ambitious student draft I’ve read in a long time, maybe ever. That’s fine, if you can pull it off, and I suspect you can. If you do, this will be not only a publishable piece, but an intellectually useful (and thus potentially a widely read) one.”
Archive for the ‘Philosophy’ Category
Constitutional Theory Term Paper Update
Saturday, December 1st, 2007Constitutional Theory Term Paper
Thursday, September 13th, 2007I need to write a term paper for my constitutional theory class. I had a meeting, on Monday, with the professor to discuss paper topic ideas. I entered the meeting with two vague ideas and left with five slightly less vague ideas.
- Write about the state of the art in empirical research about why people obey the law/authority? A jumping off point would be Tom Tyler, Why People Obey the Law.
- Take the bottom line summary or consensus from the empirical research and see how well a particular author’s theories match up. This would amount to, on some level, a study of empirical analysis vs. conceptual analysis.
- Some scholars view “writtenness” as essential to constitutionalism. I think they are wrong. I could take a particular author’s statement of why writtenness is important and challenge it. What goals are served by writtenness? What goals are not served by writtenness?
- I could write generally (historically) about the lack of needing writtenness. There would be a heavy focus on English legal history, which is cool because I like English legal history and just read a ton of it last semester. How does England mange to serve or uphold <insert some important political value or important institution> without a written constitution? What does that say about the weight American constitutional theorists place on writtenness?
- What is the purpose of constitutional theory? Why do people do constitutional theory? I have been thinking a lot about this last one since the Monday meeting. Currently it is my favorite. My initial and tentative conclusion is that constitutional theory (the conceptual analysis variety) is a form of myth making. Theorists in this mold are not satisfied with empirical explanations for why people do things (e.g., follow the law or treat the constitution as authoritative). They want more. Some want justification for the system and the way people act in the system that is beyond the system itself. Perhaps you could say they are searching for a transcendental justification? In such theories the founding fathers and a story about intentional legislative or constitutional actions often serve this function. Others want to tell a story about how the system really does constrain government. Theories in this mold focus on writtenness and original intent as constraining forces. Part of the reason they want more is that the founding fathers ditched the Monarchy and state church. I think religion and/or monarchy may provide a kind of transcendental (or mythological) justification. William Appleman Williams, in The Contours of American History, puts it this way: “Americans had come to consider the law the secular equivalent of religion as the cement of their mercantilism.” (Contours, 158) Did the Church, religion, and monarchy provide some sort of transcendental-mythological justification which is now lacking? How do myths work? Can constitutional theory convincingly be explained as search for transcendental-mythological justification? Could critical literary theory be applicable in any way?
I trying to decide between and focus these topics. To that end I welcome any thoughts or comments. In particular I’m looking for reading suggestions for (5).
human rights lead to dehumanizing crimes?
Tuesday, July 31st, 2007TLS recently reviewed ((Sylvana Tomaselli, “Where rights go wrong,” TLS, July 20 2007, 23)) of Inventing Human Rights by Lynn Hunt. The following are Hunt’s words as quoted in the review:
The very notion of human rights inadvertently opened the door to more virulent forms of sexism, racism, and anti-Semitism as the universalism of rights [led] theorists [to develop] more substantive theories of difference.
. . .
The utterly dehumanizing crimes of the twentieth century only became conceivable once everyone could claim to be an equal member of the human family.
I think Hunt is wrong. In the latter claim, I imagine, though having not read the book I can’t be sure, Hunt refers to the mechanized destruction of humanity we see in the twentieth century: Hitler, Stalin, etc. However, I do not think new forms of rights talk and corresponding substantive theories of difference led to the dehumanizing crimes. Rather industrialization, mechanization and most importantly automation. For example, IBM’s collaboration with the Third Rich was critical to the Nazi extermination efforts: “A key factor in the Holocaust in Poland was IBM technology provided directly through a special wartime Polish subsidiary reporting to IBM New York, mainly to its headquarters at 590 Madison Avenue. And that’s how the trains to Auschwitz ran on time.” ((Edwin Black, “Final Solutions: How IBM Helped Automate the Nazi Death Machine in Poland,” The Village Voice March 27 – April 2, 2002.))
Neither does my reading into the history of nativism or the history of anti-semitism jive with Hunt’s first assertion. In any case, the TLS review thrashed the book so I don’t plan on buying it.
This I Believe: humanistic empathy
Wednesday, August 3rd, 2005Previously (here and here) I argued that, for most people, empathy with humanity is difficult. That is, they cannot empathize with injuries done to far off peoples. I wrote “True recognition of the category of ‘human’ may not require such extensive and lifelong globetrotting, but it surely requires some minimum threshold amount of interaction with other “categories” of humans, in combination with an open mind, for a person to be able to build a meaningful ‘human’ category.” Creation of the ‘human’ category being the ability to empathize with others vastly different from ourselves.
Recently on the NPR documentary series This I Believe Iranian-born writer Azar Nafisi read the essay she wrote for the program. While she does not touch on the likelihood of one being able to create a ‘human’ category, her essay describes my thoughts on humanistic empathy very well. I encourage you to listen.
Technorati Tags: Culture, Philosophy
Hating the Nation-State Redux
Friday, May 20th, 2005In response to my post on nation states and categories Dan commented that he thought I was wrong when I wrote, “True recognition of the category of ‘human’ may not require such extensive and lifelong globetrotting, but it surely requires some minimum threshold amount of interaction with other “categories” of humans, in combination with an open mind, for a person to be able to build a meaningful ‘human’ category.” But, his response I think supports my contention about minimum thresholds and open minds. Dan writes, “I was raised by parents who shied me away from self-identifying as American (or Jewish, or really much of anything other than Human); we questioned nationalist myths and patriotic rhetoric at every turn. My high school, with its humanistic philosophy, furthered that damage.” This description surely constitutes what I call “open minds” and while my original conception of minimum threshold amounts of interaction focused on actual human-to-human interaction, my ideas easily extend to include the intellectual experiencing of other categories as exemplified by Dan. Experience can come from actual interaction or intellectual interaction, and my theory still holds.
Dan further supports this extension when he writes, “Anyway, the point is this internationalist, humanist philosophy got me well before I had any international experiences of note, and actually led to them not the other way. What made the key difference, in my opinion, was the never having considered myself American, was the never having to undue that set of socialization. I don’t believe socializing a humanist is any harder than socializing a nationalist; more people simply do the latter, as more people are already in that frame of mind.” Dan clearly received the minimum threshold of experience at the hands of his parents and humanistic private school. I never argued that it is per se difficult to create a humanistic category in people. Rather, I argued that “most humans, because of limited travel, education and maybe insufficiently open minds, do not experience enough “Other” for the formation of a ‘human’ category” that is, they do not have parents like Dan’s nor do they attend humanistic private schools. For most people, their formative experiences (socialization) hamper the creation of a human category. It was this social fact that I did not see “changing soon.” Even with a humanist philosophy in hand not all people will react the same to world events. A close friend of mine during high school had been a humanist, new-age, anarchist, pothead. He was a pretty wild guy. After 9/11 (and because of 9/11) he joined the U.S. Navy as an Aviation Ordinanceman. He now loads and arms bombs and missiles onto aircraft. I expected him to join the anti-war protests, and instead he joined the war. When I add the social difficulties of creating a ‘human’ category to individualized reactions that will always occur I do not see ‘human’ becoming a useful category for the foreseeable future.
Technorati Tags: Culture, Philosophy
Hating the Nation-State
Saturday, May 7th, 2005A post by ‘dandanar‘ about hating “the nation-state” has prompted some thoughts.
From my perspective xenophobia is not an essential element of the nation-state. While ‘dandanar‘ is correct when he says “A human is a human, anyone who says otherwise is probably peddling something hateful,” the statement glosses over a more important detail, namely, the creation of “Other”. Xenophobia does not flow from nation-state but from human nature and our creation of categories and other. The nation-state has long been a categorization which forms the basis for creating a xenophobic “Other” but it is not essentially so. The concept of the nation-state did not yet exist during classical Greece, nonetheless the Greeks developed an “Other,” the Barbarians (their term). These Barbarians were the people who lived north of the sphere of influence of the Greek city states. For the Greeks, distinguishing themselves from the negative traits they ascribed to the Barbarian “Other” was an important aspect of polity identification. Categorization, “Other”, and polity identification long predate the abstract concept of nation-state. Human nature and not the nation-state should shoulder the blame for xenophobic rhetoric. (See Kelly, A Short History of Western Legal Theory, for a discussion of, among other things, the development of the nation-state as an abstract concept from ancient Greeks to the twentieth century.)
An essential element of categorization is that the category must putatively exclude something. Creating a group-of-identification necessarily then creates Others, people not identified as being in the group. Humans are social animals and naturally organize themselves into groups along myriad axes. Family, tribe, clan, religion, nationality, ethnicity, race, sexual orientation, age, and a profession are only a few of the axes modern people commonly use. ‘Human’ is too large a category to be useful. From cognitive science, we learn that experience motivates categorization. That is, the abstract categories humans create are not arbitrary, rather, they follow from our embodied experience existing in the world. No human can experience all of humanity simultaneously and extraordinarily few humans will ever travel the world extensively enough to have been able to experience all of humanity piecemeal. True recognition of the category of ‘human’ may not require such extensive and lifelong globetrotting, but it surely requires some minimum threshold amount of interaction with other “categories” of humans, in combination with an open mind, for a person to be able to build a meaningful ‘human’ category. That a person can create a meaningful ‘human’ category is plainly possible, ‘dandanar’ himself is evidence of this. However, most humans, because of limited travel, education and maybe insufficiently open minds, do not experience enough “Other” for the formation of a ‘human’ category. Unfortunately, I do not see the situation changing soon. (See Winter, A Clearing in the Forest: Law, Life, and Mind, for a survey of cognitive science and what it can teach us about law.)
Joseph Epstein on Lust
Tuesday, March 15th, 2005“Beyond a certain age–and I fear I have reached it–too great an interest in lust appears unseemly, not to say obscene, in a man.”
Joseph Epstein on why he forwent writing about lust for the Oxford University Press series of books on the seven deadly sins. Epstein settled on Envy.
What is law; Aquinas
Thursday, February 3rd, 2005In Jurisprudence yesterday we discussed Thomas Aquinas and his writings on the nature of law. These are some of my thoughts, not terribly well organized mind you. I find it a useful learning aid to write out my thoughts and to seek feedback. So, feel free to comment.
In class we concluded that it seems, for Aquinas, justice is not essential for an order to be law or at least for putative law to be binding.
The like [unjust laws] are acts of violence rather than laws; because, as Augustine says (De Lib. Arb. i, 5), “a law that is not just, seems to be no law at all.” Wherefore such laws do not bind in conscience, except perhaps in order to avoid scandal or disturbance, for which cause a man should even yield his right, according to Mt. 5:40,41: “If a man . . . take away thy coat, let go thy cloak also unto him; and whosoever will force thee one mile, go with him other two.” Summa Theologica
His writing is somewhat contradictory on the connection between justice and an orders status as law. First he writes, “The like are acts of violence rather than laws . . . .” Yet in quoting Augustine he seems to be saying that unjust orders only seem to not be law. One may conclude than that, in Aquinas’ view, an order may be ‘law’ even if it is unjust. Justice then becomes simply an adjective to describe a species of order. As I indicated above there is also support in the quoted passage for the proposition that Aquinas sees the binding force of an order as unconnected with the order’s status as ‘law’. He writes in support of the notion that an unjust law is no law yet suggests it ought to bind “in order to avoid scandal or disturbance. . . .” After class I was thinking about justice and binding force both being accidental to an order’s status as law. One can easily see with both justice and binding force being accidental to law you arrive at the following permutations:
A law can be,
1. Just + binding
2. Just + non-binding
3. Unjust + binding
4. Unjust + non-binding
Aquinas wants to define the purpose of law as operating toward humanities common-good. An order made contrary to the common-good is thus unjust since it works against the purpose of law. Yet, he posits that an unjust order may still bind (and thus be law in some sense) if it cannot be disobeyed without scandal and disturbance. This seems to imply at least two levels of common good. First, the common good which the order is contrary to (making it unjust). Second, the common good of peaceful coexistence which would be violated if the unjust law were disobeyed. For Aquinas, it seems the second type of common good trumps the first. Given Aquinas’ connection between common-good and justice, one could infer that Aquinas has set up at least two levels of justice where the greater of the two (social harmony) controls the lesser (particular common-good social ends that an order may be contrary to).
What is law?
Saturday, January 22nd, 2005What is law? I’ll be thinking about that question a great deal in Jurisprudence this semester. While reading Kelly, A Short History Of Western Legal Theory I stumbled across an answer to the question that I like.
Law is the “ars boni et aequi.” Roughly, law is ‘the art of the good and right.’ From Justinian’s Digest quoting Ulpian who was quoting Celsus.
Natural Law Criticism
Sunday, January 16th, 2005I have never studied philosophy before now so I am experiencing many new ideas in last semester’s Legal Process class and this semester in Jurisprudence. There is this line of reasoning I’ve been wrestling with. My tentative formulation would go something like this:
Critics of Natural Law often point to the reality that a uniform value system can not be found across cultures or societies as indicative that a Natural Law justification for law is fatally flawed. One response is to that criticism is that there is no need to find a universal system of natural law for all cultures or societies. One may properly limit the context to a particular society. Then, one can rightly say that the United States has, for example, has a set of values (legal values and moral values) that form the basis of law within that society. That is, values that are within the society essential as Natural Law understands that term. Proof of such values is found with legal, sociological, and anthropological study of the society in question. This is in essence what Hart & Sacks did with their work in The Legal Process. A rejoinder to limiting the context in such a manner is to say that such a limitation is not satisfying in the realm of jurisprudence. That is, the questions jurisprudence seeks to answer, by their nature, are not served by such contextual limitation.
The previous paragraph is basically a summary of a conversation that I had with my Jurisprudence Professor. Underlying this is my struggle with the utility of asking “what is law” on the scale that Jurisprudence seems to want to ask the question. It seems like grand philosophical questions at such a scale are unanswerable. Perhaps that is fine. My Professor has pointed out that the most insightful Jurisprudence thinkers did not provide answers to questions, rather, showed we should be asking different questions. So perhaps the utility in asking such questions is we learn more about the nature of law even if we are never able to answer “What is law?” Indeed, H.L.A. Hart in The Concept of Law reframed the question from “what is law” generally to his three “persistent questions” about particular aspects of the nature of law and he was wildly influential with his insightful shifting of the questions.
No doubt I am the n-th (for some very large n) person to struggle with these issues but nonetheless it feels like those insisting on grand-scale Jurisprudence are missing something. I have not fully formulated my thoughts on this point but it has to do with the context of culture. As if, ignoring the contextual limiting effects of culture/society in trying to answer “what is law” results in a non-sensical inquiry (I need to better formulate what I mean by non-sensical but for now it will do). Or, perhaps, as I study more philosophy of law and learn more about what has already been said I will become more comfortable with the grand-scale line of inquiry.
If anybody has thoughts on Jurisprudence, on asking “what is law” at a grand or small scale, I would love to hear (or read as the case may be) them. Feel free to comment.