Tag Archives: Classic Revisited

Classic Revisited: Hamburger, John Stuart Mill on Liberty and Control

The historian of political ideas, Joseph Hamburger, who spent nearly all of his long and distinguished professional career in the Yale Department of Political Science, was an expert in 18th, but particularly 19th, century British intellectual history.  My little essays on Sir James Fitzjames Stephen as well as some book-related research on Edmund Burke have brought with them the great good luck of an introduction to the writing of this immensely thoughtful and erudite scholar.  Fairly recently, I picked up Professor Hamburger’s book on John Stuart Mill: John Stuart Mill on Liberty and Control (1999).

The thesis of the book is that the strong and unqualified libertarian understanding of Mill — the view that Mill was an unadulterated champion of freedom for its own sake — is very much mistaken.  Relying on the major works (the Logic, On Liberty, Utilitarianism, The Subjection of Women, etc.) as well as on many less well-known writings and letters, Hamburger argues that what interested Mill was liberty and control, and fairly substantial and intrusive types of state and social control at that:

[A]n explanation of Mill’s overarching argument in On Liberty must explain the coexistence of these two apparently opposite positions.  This is made necessary because the provisions for controls were not small exceptions to a general presumption that in most circumstances an expansive liberty ought to prevail . . . . [T]he range of cases in which [Mill] would punish, his approval of punishments for mere dispositions toward conduct that would injure others, and above all, his explanation of his purposes to [his friend] George Grote indicate that his rationale for liberty in combination with control  requires a different explanation.  It is also necessary to explain how, for Mill, the provisions for both control and liberty were not contradictory, but in fact were compatible means of implementing a coherent plan of moral reform.  (18-19)

Professor Hamburger proceeds in the following chapter to discuss the movement of Mill away from an interest in institutional reform (something which always greatly interested Bentham) toward a more ambitious plan for cultural and moral reform (in tandem with and inspired by his wife, Harriet).  He then spends several very interesting chapters discussing Mill’s aim to vanquish Christianity as the de facto social morality and replace it with a “religion of humanity” — the new moral system which would strike the balance between liberty and control properly:

The real task of religion was to direct emotions and desires away from low objects and to be “paramount over all selfish objects of desire.”  Moreover, it ought to make us disinterested: “It carries the thoughts and feelings out of self, and fixes them on an unselfish object, loved and pursued as an end for its own sake.”  Christianity, however, in Mill’s view, did anything but this:

The religions which deal in promises and threats regarding a future life, do exactly the contrary: they fasten down the thoughts to the person’s own posthumous interests; they tempt him to regard the performance of his duties to others mainly as  a means to his personal salvation; and are one of the most serious obstacles to the great purpose of moral culture, the strengthening of the unselfish and the weakening of the selfish element in our nature.  (43, quoting “Utility of Religion”)

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Classic Revisited: Maalouf, “The Crusades Through Arab Eyes”

This is not a book everyone will find satisfying. It is not a scholarly history; it focuses on great personalities rather than wider social, military, or intellectual movements. It is not particularly analytic; the author attempts to explain the Crusades and their impact in a brief concluding chapter. And, as the title suggests, it is essentially one-sided. Amin Maalouf, a Lebanese Catholic writer who lives in France – and is a member of the Académie Française – presents things very much from the point of view of Arab Muslim chroniclers who lived through the Crusades, who wrote of the Franj as barbarous, unwashed, promiscuous brutes who had invaded the House of Islam without provocation and who must be expelled, no matter how long it took. (One irony Maalouf notes: although the chroniclers were Arabs, the leaders of the Muslim party were, virtually to a man,  Kurds and Turks).

Why, then, is this book, first published almost thirty years ago and recently re-released in a new edition, a “classic”? Because Maalouf is a vivid writer who brings the past alive and who offers insights on the two-hundred year clash of civilizations the Crusades represented. He details the kaleidoscopic pattern of alliances that formed and dissolved: Christian against Muslim, of course, but also Sunni against Shia and Western Christian against Eastern Christian. Allegiances could shift rapidly: a Shia caliph in Egypt might seek the aid of the Franj against his Continue reading

Classic Revisited: Gillespie, The Theological Origins of Modernity

It’s been a while since I did one of these, and though Michael Allen Gillespie’s The Theological Origins of Modernity (2008) is a little young for “classic” status, it is a learned and original intellectual history of modernity.  Gillespie’s thesis is that the conventional account of modernity as setting itself in opposition to or as rejecting altogether religion and theology is mistaken.  Instead, as he puts it early in the book:

[F]rom the very beginning, modernity sought not to eliminate religion but to support and develop a new view of religion and its place in human life, and did so not out of hostility to religion but in order to sustain certain religious beliefs.  As we shall see, modernity is best understood as an attempt to find a new metaphysical/theological answer to the question of the nature and relation of God, man, and the natural world that arose in the late medieval world as a result of a titanic struggle between contradictory elements within Christianity itself . . . . I will argue further that while this metaphysical/theological core of the modern project was concealed over time by the very sciences that it produced, it was never far from the surface, and it continued to guide our thinking and action, often in ways that we do not perceive or understand.  I will argue that the attempt to read the questions of theology and metaphysics out of modernity has in fact blinded us to the continuing importance of theological issues in modern thought in ways that make it very difficult to come to terms with out current situation.

Gillespie goes about making his case by beginning with the contest between scholasticism and nominalism (the view that what is real is particular and individual, not universal, and so “God [cannot] be understood by human reason but only by biblical revelation or mystical experience”).  The conflict was, as he says above, primarily and originally a late medieval conflict, not one which came into being in the Enlightenment (let alone later).  “The God that Aquinas and Dante described was infinite, but the glory of his works and the certainty of his goodness were manifest everywhere.  The nominalist God, by contrast, was frighteningly omnipotent, utterly beyond human ken, and a continual threat to human well-being.  Moreover, this God could never be captured in words and consequently could be experienced only as a titanic question that evoked awe and dread.  It was this question, I want to suggest, that stands at the beginning of modernity.”  (15)

One feature of the book that was particularly enjoyable for me is Gillespie’s emphasis on the poet Petrarch as the representative both of this struggle and of the turn toward nominalism (in graduate school years ago, Petrarch’s poems about Laura in the Canzoniere were one of my favorite things).  I confess that before reading Gillespie’s book, I had never thought about Petrarch as an important or even a notable figure with respect to these kinds of issues.  Gillespie devotes roughly a chapter and a half to him.  He claims that Petrarch was the first writer to face the nominalist challenge — the view that “there is no divine logos or reason that can serve as the foundation for a political, cosmopolitan, or theological identity.” (45)  Confronted with the political and social chaos of the mid-14th century, Petrarch looked “not to the city, God, or the cosmos for support, but into himself, finding an island of stability and hope not in citizenship but in human individuality.”

I cannot do justice to Gillespie’s superb treatment of Petrarch, but here’s a relatively late summary paragraph in his discussion:

It is difficult today to appreciate the impact Petrarch had on his contemporaries in part because we find it so difficult to appreciate his impact on us.  Petrarch is scarcely remembered in our time.  There are very few humanists or academics who can name even one of his works; and none of his Latin works makes it on to a list of great books.  And yet, without Petrarch, there would be no humanists or academics, no great books, no book culture at all, no humanism, no Renaissance, and no modern world as we have come to understand it.  Why then have we forgotten him?  Several factors contribute to his oblivion: the neglect of Latin literature as literary scholars have increasingly focused on national literatures, changing scholarly tastes and fashions, and the fact that many of his works fall outside of familiar genres.  But the real cause lies deeper.  Petrarch seldom tells us anything that we don’t already know, and as a result he seems superfluous to us.  But this is the measure of his importance, for what he achieved is now so universally taken for granted that we find it difficult to imagine things could have been otherwise.  (69)

One last side note, and please forgive the musical addendum, but Franz Liszt certainly did not forget Petrarch.  Have a listen to his extremely beautiful song cycle, “Les Années de Pèlerinage” (“The Years of Wandering” — which is just what Petrarch did for most of his life), and particularly Year 3 in that cycle (“en Italie”), which contains some wonderful settings of several Petrarchan sonnets.  Number 47 is really spectacular and, maybe, captures a little of what Gillespie is talking about.

McGinnis on Berman

Over at the Liberty Law Blog, John McGinnis (Northwestern) is doing a very interesting series on Harold Berman’s seminal two-volume history of Western law, Law and Revolution. In Law and Revolution, Berman argued that the existence of competing jurisdictions, each with a valid claim on people’s loyalties, has played an essential role in Western law, going all the way back to the 11th-century investiture crisis, which dealt in part with the competing jurisdictions of canon and royal courts. In this post, McGinnis argues that legal polycentrism of the sort Berman describes can promote liberty by preventing governmental monopolies. Classical American federalism, for example, promotes liberty by dividing power between state and federal sovereigns. McGinnis wonders, though, whether federalism can do the job today, now that states claim relatively little loyalty from their citizens. Check out the whole series.

Classic Revisited: Proudfoot, “Religious Experience”

When I was a student, one of the best and most insightful books on the quality of religious experience that I came across was Wayne Proudfoot’s Religious Experience (1985).  Proudfoot’s exploration is important for law in a variety of ways, one of which may be that it may be seen as in conversation with the “is-religion-special” literature that is now emerging in legal scholarship.  Proudfoot’s emphasis on the noetic quality of religious experience (building upon William James’s writing in deeply interesting ways) has influenced my own thinking about the nature of the experience at issue in cases like Lyng v. Northwest Indian Protective Cemetery Ass’n and others.  Here is a passage from the introduction of the book:

This book is about the idea of religious experience which has been so influential in religious thought and the study of religion in the past two centuries.  It is an examination of some of the most important theories of religious experience, an elucidation of the idea or concept as it is presupposed by such topics as mysticism and reductionism in the study of religion, and a consideration of the implications of these theories and this idea for contemporary issues in the philosophy of religion.  Particular attention will be given to the way people come to understand or interpret their behavior and what is happening to them, and under what conditions they label certain bodily or mental states religious. 

Classic Revisited: Stoner, “Common-Law Liberty”

One of the books that I’ve learned most from in the last few years is James R. Stoner’s terrific Common-Law Liberty: Rethinking American Constitutionalism (2003).  Stoner’s thesis is not only that American constitutional law cannot be understood well without reference to the common law tradition, but that “the common law is a key guide to understanding the fundamental principles of our Constitution and a guide for deciding contemporary constitutional cases.”  Common-law constitutionalism has been taken in different directions in recent years (see, e.g., David Strauss’ interesting work).  But it is in Stoner that, in my view, one sees the purest and most convincing expression of common-law constitutionalism.

Here is a particularly insightful passage from the book (at 59) dealing with common-law constitutionalism with respect to the religion clauses.

To attend to the common-law moment in exploring the law of free exercise is, in other words, to examine as a source of law the American experience of religious liberty, as it can be collected from constitutions and statutes, and even from the laws and traditions of particular churches.  Obviously, these various sources of law will not weigh equally in a court’s determination of a particular dispute before it, but it is characteristic of common law to determine the applicability of rules in the context of the facts of the instant case, not to seek a single rule or theory to encompass all imaginable cases.  It is, for example, not irrelevant to such a consideration that common law itself arose in a particular religious context . . . . Nor is it irrelevant to such a consideration that American circumstances with regard to religion, at the time of the Founding and perhaps still today, are unique, and that those circumstances vary markedly from state to state.  To recommend a common-law perspective, then, is to suggest avenues of inquiry rather than to propose a ready theory.  Yet it does suppose a certain openness to experience, both in its deference to the wisdom collected in tradition and in its willingness to entertain the possibility of a genuinely new and unanticipated case. 

Classic Revisited: Nisbet, “Twilight of Authority”

Recent events have me thinking about the American sociologist Robert Nisbet’s old classic, Twilight of Authority (1975).  Published in some sense in response to the Watergate disaster, the book’s thesis was that the distinction between the cultural or social and the political is vanishing, as the historical mediating institutions of authority —  family, religion, and community, among others – all of which are hierarchical in nature, are being replaced by allegiance to the state, which in turn absorbs the functions previously performed by other private institutions.  The thesis is not particularly unique, and certainly did not originate with Nisbet.  But Nisbet gives it unique and elegant expression in this volume.

And here is an old essay of Nisbet’s, from the excellent but sadly now defunct journal, The Public Interest, entitled, Public Opinion vs. Popular Opinion.  A bit from the essay, to give you a taste of Nisbet’s style:

A true public, as A. Lawrence Lowell stressed in his classic work on public opinion more than a half-century ago, is at bottom a community: built, like all forms of community, around certain ends held in common and also around acceptance of the means proper to achievement of these ends. Not the people in their numerical total, not a majority, nor any minority as such represents public opinion if the individuals involved do not form some kind of community, by virtue of possessing common ends, purposes, and rules of procedure. Public opinion is given its character by genuine consensus, by unifying tradition, and by what Edmund Burke called “constitutional spirit.” 

Popular opinion is by contrast shallow of root, a creature of the mere aggregate or crowd, rooted in fashion or fad and subject to caprice and whim, easily if tenuously formed around a single issue or personage, and lacking the kind of cement that time, tradition, and convention alone can provide. Popular opinion is an emanation of what is scarcely more than the crowd or mass, of a sandheap given quick and passing shape by whatever winds may be blowing through the marketplace at any given time. It would be incorrect to say that popular and public opinion are totally unconnected.  What proves to be public opinion in a community is commonly generated by popular opinion, whether in majority or minority form; but it is only through a process of adaptation or assimilation-by the habits, values, conventions, and codes which form the fabric of the political community-that popular opinion ever becomes what we are entitled to call public opinion, the opinion that is in fact more than opinion, that is at bottom a very reflection of national character.

Classic Revisited: Smith, “Foreordained Failure”

Today’s classic revisited is Steven D. Smith’s book, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (1995).  If I were constructing a top all-time list of law and religion works, this book would surely make my top 3.  The book is a classic in the law and religion canon because it is really the first explicitly to resist the notion that the religion clauses were meant to protect any single principle or value at all.  They instead reflected a compromise among people who thought very differently about the proper relationship of church and state.  The book is partially historical and partially theoretical; the latter sections examine the possibility of an “unprincipled” approach to religious liberty, and what it would look like.

As with all of Smith’s work, the book is a model of clear, accessible, and always insightful writing.  If you are looking for a lucid book which will appeal equally to people who have studied these issues and a more generally educated audience, this is it.  More than this, Smith’s book has inspired a rising generation of new writers (I count myself in this group) to explore themes which he was the first to illuminate.  Here’s just a brief portion (at 11-12) to give you a rough feel for the book’s quality:

[W]e might acknowledge that there is no single or self-subsisting “principle” of religious freedom; there is only a host of individuals with a host of different opinions about how much and what kind of scope government ought to give to the exercise of religious beliefs and practices.  Aquinas’s views on this subject were different from Cromwell’s; Cromwell’s were different from Madison’s.  But all these figures believed in some version of religious freedom; they believed, that is, in giving some scope to divergent religious beliefs or practices.  And it is simply misleading to suppose that there is a univocal principle of religious freedom, hovering in some Platonic realm independent of these different opinions — a principle of which the opinions of Aquinas, Cromwell, and Madison were more or less faithful copies.

It is important to clarify how this more pluralistic approach to the question differs from an approach that at least tacitly conceives of religious freedom as a unitary principle or singular ideal.  In acknowledging a variety of versions of religious freedom, we can still insist that some opinions about the proper scope of religious freedom are more attractive, or more rationally defensible, than others.  I might believe, for example, that the arguments for the positions I take on the issues of religious freedom are more persuasive than the arguments for the positions taken by Cromwell — or Justice Brennan.  This disagreement, however, merely entails the familiar sort of debate about whose arguments are stronger or whose position is more attactive or plausible.  There is little to be gained by trying to frame the debate as one about who really perceives the true meaning of “the principle of religious freedom.”  Consequently, although I might assert that those who disagree with me are “wrong” or that their arguments are “weak” or “implausible,” I would have no justification at all for saying, for example, that they have failed to understand the very principle that they purport to respect or that in professing to respect that principle they are being thoughtless or hypocritical.

Likewise, a more pluralistic approach to religious freedom would not prevent us from discerning in Western history a kind of progress toward the achievement of more complete religious freedom.  This characterization might simply mean that current notions of religious freedom allow greater scope for diverse religious conduct and belief.  It might also mean that we think the reasons supporting current opinions are more plausible than those invoked in behalf of earlier views.  Conversely, it is unnecessary and potentially misleading to say that “the principle” of religious freedom was somehow implicit in but inadequately expressed by earlier positions, or that Western history reflects an ongoing, ever more perfect realization of the principle of religious freedom.

Classic Revisited: Tocqueville’s “Democracy in America”

This one will be familiar to many CLR Forum readers, but I was reminded of Alexis de Tocqueville’s wonderful work of comparative political science, Democracy in America (1835 & 1840) (readable in its entirety for free, people, for free!)  as I was preparing for my constitutional law class this spring.  Rather than reproducing the well-known tracts about American “democratic” religion, here’s a fragment from Tocqueville’s superb discussion of the unique position of the American federal judiciary.  Note in particular Tocqueville’s emphasis toward the end of the section I’ve reproduced on the fact that the American judge does not deal in “theoretical generalities,” but in very discrete factual particulars.  A proto-minimalist passage, perhaps.  From Volume I:

The first characteristic of judicial power in all nations is the duty of arbitration. But rights must be contested in order to warrant the interference of a tribunal; and an action must be brought before the decision of a judge can be had. As long, therefore, as a law is uncontested, the judicial authority is not called upon to discuss it, and it may exist without being perceived. When a judge in a given case attacks a law relating to that case, he extends the circle of his customary duties, without, however, stepping beyond it, since he is in some measure obliged to decide upon the law in order to decide the case. But if he pronounces upon a law without proceeding from a case, he clearly steps beyond his sphere and invades that of the legislative authority.

The second characteristic of judicial power is that it pronounces on special cases, and not upon general principles. If a judge, in deciding a particular point, destroys a general principle by passing a judgment which tends to reject all the inferences from that principle, and consequently to annul it, he remains within the ordinary limits of his functions. But if he directly attacks a general principle without having a particular case in view, he leaves the circle in which all nations have agreed to confine his authority; he assumes a more important and perhaps a more useful influence than that of the magistrate, but he ceases to represent the judicial power.

The third characteristic of the judicial power is that it can act only when it is called upon, or when, in legal phrase, it has taken cognizance of an affair. This characteristic is less general than the other two; but, notwithstanding the exceptions, I think it may be regarded as essential. The judicial power is, by its nature, devoid of action; it must be put in motion in order to produce a result. When it is called upon to repress a crime, it punishes the criminal; when a wrong is to be redressed, it is ready to redress it; when an act requires interpretation, it is prepared to interpret it; but it does not pursue criminals, hunt out wrongs, or examine evidence of its own accord. A judicial functionary who should take the initiative and usurp the censureship of the laws would in some measure do violence to the passive nature of his authority.

The Americans have retained these three distinguishing characteristics of the judicial power: an American judge can pronounce a decision only when litigation has arisen, he is conversant only with special cases, and he cannot act until the cause has been duly brought before the court. His position is therefore exactly the same as that of the magistrates of other nations, and yet he is invested with immense political power. How does this come about? If the sphere of his authority and his means of action are the same as those of other judges, whence does he derive a power which they do not possess? The cause of this difference lies in the simple fact that the Americans have acknowledged the right of judges to found their decisions on the Constitution rather than on the laws. In other words, they have permitted them not to apply such laws as may appear to them to be unconstitutional.

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Classic Revisited: Justice Joseph Story’s “Commentaries on the Constitution”

Justice Joseph Story’s Commentaries on the Constitution of the United States (1833) (available for free!) is a lively, opinionated, and rangy discussion of the original understanding of the Constitution.  Story was a Supreme Court justice from 1811-1845, and for much of that period he was also a professor at Harvard Law School (one could do both in those days).  Professor Michael Paulsen once aptly called Story’s 3-volume tour de force “comprehensive and brilliant, but often tendentious” and listed it as among the top five books of all-time about the Constitution.  Chief Justice William Rehnquist once used some of Story’s discussion of the Establishment Clause in his dissenting opinion in Wallace v. Jaffree (the moment of silence case).  Here is a good chunk of Story — sections 1865-1871 of his treatise — to give you a sense of his views and style:

§ 1865. And first, the prohibition of any establishment of religion, and the freedom of religious opinion and worship.  How far any government has a right to interfere in matters touching religion, has been a subject much discussed by writers upon public and political law. The right and the duty of the interference of government, in matters of religion, have been maintained by many distinguished authors, as well those, who were the warmest advocates of free governments, as those, who were attached to governments of a more arbitrary character.  Indeed, the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice. The promulgation of the great doctrines of religion, the being, and attributes, and providence of one Almighty God; the responsibility to him for all our actions, founded upon moral freedom and accountability; a future state of rewards and punishments; the cultivation of all the personal, social, and benevolent virtues; — these never can be a matter of indifference in any well ordered community. It is, indeed, difficult to conceive, how any civilized society can well exist without them. And at all events, it is impossible for those, who believe in the truth of Christianity, as a divine revelation, to doubt, that it is the especial duty of government to foster, and encourage it among all the citizens and subjects. This is a point wholly distinct from that of the right of private judgment in matters of religion, and of the freedom of public worship according to the dictates of one’s conscience.

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