Eugene Kontorovich, whose blogging is a treat, has a wonderful post up on the new German zoophilia. The old German zoophilia was manifested in the civil right to bestiality back in 1969, and the rise of predictably associated phenomena of moral decay — the taste for which, it seems, is on the rise. The new zoophilia champions the rights of animals to be left alone — one might even call it a right of privacy — in seeking to have these libertine liberties reversed (note that animal cruelty laws do not seem to be in issue, though I haven’t studied the challengers’ case well enough to know). The difficulty is the question of the grounding of the right, since moralistic reasons, or reasons of “legal moralism” (whatever those may be) are now widely deemed outré in Germany. The law and religion angle? Well, historically “legal moralist” reasons have included religious reasons as a kind of core example. Professor Kontorovich has an interesting observation about the issue of consent:
I suspect the motives behind the ban are entirely moralistic. Yet the government cannot come out and say so. Thus effort is made to distinguish the matter from Germany’s libertarian approach to sexual matters by suggesting the animals do not consent in the way consenting humans do. Yes, but they don’t consent to being bought or sold, or butchered, either, and they are not human, so consent is a red herring. This would not pass intermediate scrutiny in the U.S.
He then notes the now-common move of grounding the moralistic regulation of sexuality in arguments from social harm and public policy, but here perhaps I differ a bit with Professor Kontorovich. It was always the case that the retrograde moralizers grounded their arguments in ideas of social harm, beneficent social policy, and so on. The distinction is not of the method of argumentation now and then, but of the difference between what passes for harm now and then. These two excellent papers — one by Bernard Harcourt (but sadly unavailable without payment) and the other by Steve Smith — come at matters from fairly different angles but gesture toward the same larger idea.
I have a new paper, which is a chapter contribution for what will be a conceptual history of several foundational writings in criminal law and punishment. It’s called, The Punishment Jurist, and deals with the thought of Sir James Fitzjames Stephen, a judge of the Victorian period. The essay is more about criminal punishment than about law and religion, but there is a good bit about the latter as well.
In his major work of scholarship — the History of the Criminal Law of England (1883) — Stephen discusses (at the end of Volume II) the issue of “offenses against religion.” And one of the matters he takes up is the crime of witchcraft. I discuss his views of witchcraft and other offenses against religion to rebut the oft-heard and erroneous claim that Stephen believed the realms of morality and criminality to be co-extensive (notwithstanding his belief in the important connections between the two, and in turn between morality and religion), and the claim that Stephen is a punishment consequentialist full stop.
Comments are welcome.
Next month, Cambridge University Press will publish Martin Luther King, Jr. and the Morality of Legal Practice: Lessons in Love and Justice by Robert K. Vischer (U. of St. Thomas School of Law). The publisher’s description follows.
This book seeks to reframe our understanding of the lawyer’s work by exploring how Martin Luther King Jr. built his advocacy on a coherent set of moral claims regarding the demands of love and justice in light of human nature. King never shirked from staking out challenging claims of moral truth, even while remaining open to working with those who rejected those truths. His example should inspire the legal profession as a reminder that truth-telling, even in a society that often appears morally balkanized, has the capacity to move hearts and minds. At the same time, his example should give the profession pause, for King’s success would have been impossible absent his substantive views about human nature and the ends of justice. This book is an effort to reframe our conception of morality’s relevance to professionalism through the lens provided by the public and prophetic advocacy of Dr. King.
This October, Georgetown University Press will publish Law’s Virtues: Fostering Autonomy and Solidarity in American Society by Cathleen Kaveny (University of Notre Dame). Kaveny will present her book on September 20 at a lunchtime seminar at the Berkley Center. The publisher’s description follows.
Can the law promote moral values even in pluralistic societies such as the United States? Drawing upon important federal legislation such as the Americans with Disabilities Act, legal scholar and moral theologian Cathleen Kaveny argues that it can. In conversation with thinkers as diverse as Thomas Aquinas, Pope John Paul II, and Joseph Raz, she argues that the law rightly promotes the values of autonomy and solidarity. At the same time, she cautions that wise lawmakers will not enact mandates that are too far out of step with the lived moral values of the actual community.
According to Kaveny, the law is best understood as a moral teacher encouraging people to act virtuously, rather than a police officer requiring them to do so. In Law’s Virtues Kaveny expertly applies this theoretical framework to the controversial moral-legal issues of abortion, genetics, and euthanasia. In addition, she proposes a moral analysis of the act of voting, in dialogue with the election guides issued by the US bishops. Moving beyond the culture wars, this bold and provocative volume proposes a vision of the relationship of law and morality that is realistic without being relativistic and optimistic without being utopian.
Jonathan Haidt has been doing extremely interesting work at the intersection of psychology, ethics, politics, and sociology. That is in part why I am very much looking forward to reading his recently published book, The Righteous Mind: Why Good People Are Divided by Politics and Religion (Random House 2012). The publisher’s description follows.
Why can’t our political leaders work together as threats loom and problems mount? Why do people so readily assume the worst about the motives of their fellow citizens? In The Righteous Mind, social psychologist Jonathan Haidt explores the origins of our divisions and points the way forward to mutual understanding.
His starting point is moral intuition—the nearly instantaneous perceptions we all have about other people and the things they do. These intuitions feel like self-evident truths, making us righteously certain that those who see things differently are wrong. Haidt shows us how these intuitions differ across cultures, including the cultures of the political left and right. He blends his own research findings with those of anthropologists, historians, and other psychologists to draw a map of the moral domain, and he explains why conservatives can navigate that map more skillfully than can liberals. He then examines the origins of morality, overturning the view that evolution made us fundamentally selfish creatures. But rather than arguing that we are innately altruistic, he makes a more subtle claim—that we are fundamentally groupish. It is our groupishness, he explains, that leads to our greatest joys, our religious divisions, and our political affiliations. In a stunning final chapter on ideology and civility, Haidt shows what each side is right about, and why we need the insights of liberals, conservatives, and libertarians to flourish as a nation.
Over at Mirror of Justice, Rob Vischer (St. Thomas – Minnesota) has an interesting post about a presentation he made last week, at a conference at Notre Dame, about the secularization of the legal profession over the last century. As evidence, he gives the very good example of the move from the “‘moral law’” standard of the 1908 ethical canons to today’s more agnostic approach. Although under the 1908 canons lawyers had a duty to provide moral advice to clients, nowadays moral advice is optional, and, in fact, subtly disfavored. The contemporary lawyer must find a way to achieve the client’s ends within the bounds of the law; we leave questions of morality mostly to the client. As it happens, I made a presentation on this very subject last month at the Forum 2000 Conference in Prague, in which I argued that the new approach is not the abdication of morality, exactly, but the substitution of a morality of individualism for one based on consensus moral norms derived from religion. (A video of the talk is here). Rob has a paper in the works that will no doubt be, like all his scholarship, well worth the reading. – MLM
Here’s a question some buddies and I have been throwing around that I thought our learned readership at CLR Forum might know something about. I know that Alasdair MacIntyre’s critical thesis in After Virtue has found some applications for and in law. That is, MacIntyre’s diagnosis of the unintelligibility and interminability of moral discourse not as proof that non-cognitivists are right but instead as evidence that we have lost the teleological foundations that made moral discourse and the ideas of true and false possible in the first place, the incapacity of rationalism to replace that Aristotelian foundation, and the resultant contemporary emotivism — some or all of this has found applications of one sort or another in legal academic writing with which I am familiar. Some of Steve Smith’s writing draws on the critical thesis in MacIntyre, for example.
What I am not sure about is whether the more positive thesis of After Virtue about social practices, goods internal to those practices, the contextualism of those goods and their intelligibility only within social practices, the mutability of the goods as the practices/traditions evolve, and the practices/traditions as sites within which the virtues are displayed — has anyone written about the law as such a social practice/tradition? Has anyone developed the contextual, situated social practice/tradition thesis in MacIntyre as an account of law?
An interesting post by Ian Johnson about the uses to which Daoism is being put by the Chinese government. — MOD