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Crime & Punishment: A Gandhian Perspective

 

I’ve been re-thinking my views on punishment of late, although the tentative and inchoate nature of these thoughts prompt me (for now at least) to refrain from sharing them, even in a blog post.[1] However, having recently posted on the Gandhian take (by way of Bhikhu Parekh) on classical Liberal—and capitalist—ownership and private property, I thought to share his ideas on crime and punishment as well. Once more we’ll rely on Parekh’s well-crafted summary.[2]

Three areas in particular in which Gandhi highlighted the indissoluble connection between violence and the modern State: war, the exploitative economic system, and the punishment of crime.[3] The violence in these three cases is also conspicuous for being tolerated by elites and masses alike. We’ll concern ourselves with the last. As you’ll see in the bracketed comments, I’m not too fond of the use Gandhi makes of an analogy between disease and crime (owing to his indiscriminately moralistic approach to the former), however much something might be learned from the comparison. Nevertheless, we should not permit problems with that analogy to detract us from a fair consideration of his views on crime and punishment.

“Gandhi was disturbed by the ‘silent’ and largely invisible but extensive violence daily committed by the state without a murmur of protest, namely the prisons. His views on the subject were derived not only from his theory of non-violence but also from his reflections on what imprisonment had done to him, to his political colleagues and the ordinary criminals who sometimes shared prisons with him during his nearly six years of incarceration in India and seven months in South Africa.

For Gandhi, there were only crimes, not criminals. To describe a man as a criminal was to imply that criminality was inherent in his nature and that he was nothing more than a criminal. A man committing a crime did not necessarily have a criminal disposition, both because an isolated act did not signify a pattern, and also because a crime was often the result of a number of factors only marginally related to the agent’s character. Even if he was in the habit of committing crimes, he did not cease to be a human being endowed with a moral and spiritual nature. He was always more than and must be separated from his actions and tendencies. While his crimes should be condemned and punished, he deserved to be treated with the respect and love due to a fellow human being. Rather than brutalise and degrade him, punishment should help him reclaim his humanity. Men were responsible for one another, and if one of them turned delinquent, the rest could not disown their equal responsibility for his behavior. Even as he must search his conscience, they must probe theirs.

Gandhi detected a deep contradiction between modern society’s attitudes to disease and crime. It viewed disease with a solicitous concern bordering on indulgence and devoted vast resources to inventing new drugs, instruments, more effective forms of treating and acquiring greater knowledge of the human body. Diseases owed their origins to such causes as overeating, unbalanced diet, bad habits, consumption of alcohol, excessive stress and strain and an undisciplined life, all of which were moral lapses showing weak will-power and bad judgment. [Needless to say, Gandhi’s views here are quite radical and probably unacceptable to most of us insofar as we recognize that at least some diseases have a not insignificant genetic component or may arise, as it were, unbidden (as when, in the jargon of pop psychology, ‘bad things’ happen to ‘good people’). Furthermore, his view cannot accommodate the cases of infants and young children afflicted by diseases through no fault or lapse—moral or otherwise—of their own. That said, there’s a fair amount of truth to this picture, as seen in the case of at least some health problems: cancer, heart disease, stroke, and Type 2 diabetes, for example. Yet even this truth takes insufficient cognizance of the role of socio-economic environmental factors in affecting behavioral problems ostensibly caused by bad habits, poor judgment, or weakness of will.] Society, however, attached no opprobrium to and imposed no punishment on them, and took no steps to strengthen the intellectual and moral fibre of those involved. [Again, in the time elapsed since Gandhi composed his thoughts on this topic, things have in fact changed, at least in this country, as opprobrium and informal sanctions are in place with regard, for example, to morbid obesity, the eating of “junk food,” smoking, and excessive drinking, although the social messages in toto are undoubtedly “mixed” and contradictory in the face, for instance, of mass media entertainment and advertising. This serves to weaken the strength of Gandhi’s analogical comparison between disease and crime.] By contrast, it treated crime with the greatest of severity. Even when petty and inadvertent, it condemned it in the strongest terms and punished it in a demeaning and degrading manner. Society devoted little attention to exploring effective ways of eradicating it, and continued with the same old method of imprisonment which not only did not reduce but even increased the incidence of crime.

For Gandhi there was no real difference between crime and disease. Both, alike, displayed poor self-discipline and a lack of social responsibility and concern for others, both were avoidable and both cost society a great deal of money. There was no reason to tolerate one and condemn the other or to treat one with indulgence and the other with severity. [….] Even as modern medical science pampered the body, encouraged self-indulgence, weakened self-control and allowed disease to continue unabated, the modern prison brutalised its inmates, weakened their self-respect and encouraged the recurrence of crime. [….]

For Gandhi crime was a moral lapse, a ‘disease’ [in a metaphorical sense], not the normal condition of a human soul. Most men never committed crimes, and those who did generally refrained from doing so when treated with love and understanding. In his view, man committed crimes for one of three reasons: first, to secure the basic needs of life; second, a weak will and the inability to resist temptation; and third, in rare cases ill-will or malevolence. In the first case, crime was a product of poverty, and in the other two bad social and economic conditions and poor upbringing. For Gandhi will-power and self-discipline were not natural endowments but products of upbringing and the dominant social ethos. As for malevolence it too was not natural to man, for even the most hardened and vicious criminals loved someone, at least their parents, wives, husbands, children or animals, and the question was one of widening the range of their capacity for love and goodwill. [I suspect Gandhi ignored or wildly underestimated the occurrence of psychopathic behavior.] Since crime was basically a ‘product of social organisation,’ it could be very considerably minimised by appropriately changing the latter.

[Imprisonment, Gandhi believed], was generally inspired by the spirit of retribution which was morally unworthy of and reduced the state to the level of its temporarily deviant member. It provoked the spirit of vengeance in the prisoner and perpetuated the vicious cycle of violence. Above all, it never solved the basic problem of reducing the incidence of crime in the long term. Once behind bars a man was generally ‘lost to society for ever.’ He rarely came out reformed but often worse. In locking him up the state did violence to and even killed the human being in him, a crime often worse than the one committed by him. Gandhi pleaded that a state calling itself civilised must put an end to the system of daily dehumanising and brutalising its members and find less violent and inhuman ways of coping with crime, even if that involved taking calculated risks and making bold experiments. He observed:

Quite a few people say and believe that many children have been reformed through beating. It is this belief which is responsible for the increasing burden of sin in the world at present. The use of force is soul-destroying and it affects not only the person who uses it but also his descendants and the environment as a whole. We should examine the total effect of the use of force, and that over a long period of time. The use of force has continued over a long period of time, but we do not find that those things against which force has been employed have been destroyed. Formerly there used to be heavy punishments for theft. It is the opinion of all expert observers that heavy punishments have not stopped thefts. As the punishments began to be tempered with mercy, the number of thefts declined. 

Until such time as an alternative to prisons was found—and Gandhi confessed that he had not yet been able to come up with one—much could be done to improve them. The most important change should be at the level of attitude. We should see them as places for reforming, not punishing people. Since they could not be reformed unless kept under constant supervision, their movements had to be restricted. Even as keeping patients in hospitals or quarantining those suffering from infectious diseases was not imprisonment, keeping those guilty of crime in reformative institutions for the required period of time was not so either. [….] In his view much could be achieved if ‘prisons’ were to become workshops-cum-educational institutions encouraging their inmates in constructive and socially useful activities, providing for their moral education and building up their self-respect, sense of social responsibility and character. He thought they were more likely to be reformed if trusted and provided with privacy, a decent environment, healthy diet, proper rest and civilised relations with each other and their wardens. Every social order successfully moulded the character of its members along the desired lines. There was no reason why the ‘prisons’ could not learn from its methods and achieve the same results.”

Notes:

[1] I’ve been inspired most recently and in part, by Ted Honderich’s book, Punishment: The Supposed Justifications Revisited (London: Pluto Press, 5th edition, 2006). See too this earlier post on “Crime and Unusual Punishments.” I’ve since updated (and divided into two parts: 1. criminal law, and 2. punishment and prisons) my bibliography for “criminal law, punishment and prisons” and will send it along upon request.

[2] Bhikhu Parekh, Gandhi’s Political Philosophy: A Critical Examination (Notre Dame, IN: University of Notre Dame Press, 1989). 

[3] Far and away the most analytically satisfying and thorough treatment of Gandhi’s understanding of violence and nonviolence remains Raghavan Iyer’s formidable study, The Moral and Political Thought of Mahatma Gandhi (Santa Barbara, CA: Concord Grove Press, 2nd ed., 1983, 1st ed., Oxford University Press, 1973). An introduction to basic literature on Gandhi’s life and work is found here.

Republicans and the Battle Against Science

I am sure many of us regard it as frightening that serious Presidential candidates must deny the science behind evolution or the greenhouse effect in order to receive the nomination of a major political party. In other words, you have to be really crazy (or a liar) to get the Presidential nomination of the Republican Party. And we all know how this has happened. Tea Party madness is fundamentalist Christian madness, and that madness has a grip on the base of the Party. The good news is that the madness of the Republican Party base is regarded as quite crazy by the rest of the country.

I wish I could say that being crazy necessarily spells doom for the Republican candidate in 2012, but there will be other factors in the election – particularly Obama’s failure to solve the unemployment problem, and his failure to regularly challenge the Republican drumbeat that smaller government, placing money in the hands of the rich, and an unregulated market are the keys to solving unemployment.

Nonetheless, the anti-science of the Republicans (not to mention the ideas that hurricanes are messages from God or that Texas seceding from the union might be a good idea) will make for great attack ads. I would look forward to them if they were not a sure sign that partisan political debate in this country is so far removed from serious dialogue.

Private Property & Ownership: The Gandhian Critique

 

The following is Bhikhu Parekh’s pithy introduction to Gandhi’s critique of the Liberal—and capitalist—conception of private property and ownership:

“The logic of private property was logically incoherent for two reasons. First, there was no logical basis on which a man could claim exclusive ownership of the products of his labour. Born a debtor, he remained one all his life. His powers, capacities, character and energies were all socially derived, and hence not his private property but a social trust to be responsibly used for the well-being of his fellow-men. Second, the efforts of countless men and women flowed into one another to produce even a simple object, rendering it impossible to demarcate the distinctive contribution of each. Their efforts further occurred within the context of the established social order whose silent and unnoticed but vital contribution could not be ignored either. [….]

For Gandhi private property was subversive of the social order because it conflicted with the fundamental principles underlying and sustaining it. The customs, values, traditions, ways of life and thought, habits, language and educational, and other institutions constituting a social order were created by the quiet co-operation and the anonymous sacrifices of countless men and women over several generations, none of whom asked for or could ever receive reward for all their efforts. And their integrity was preserved by every citizen using them in a morally responsible manner. Every social order was thus of necessity a co-operative enterprise created and sustained by the spirit of sharing, mutual concern, self-sacrifice and yajna [‘sacrifice’ generally]. And its moral and cultural capital, available by its very nature to all its members as freely as the air they breathed, constituted their collective and common heritage to be lovingly cherished and enriched. The institution of private property rested on the opposite principles and breathed a very different spirit. It stressed selfishness, aggression, exclusive ownership, narrow individualism, a reward for every effort made, possessiveness and a right to do what one liked with one’s property. It was hardly surprising, Gandhi argued, that its domination in the modern age should have atomized and culturally impoverished society and undermined the basic conditions of human development.”

See Parekh’s book, Gandhi’s Political Philosophy: A Critical Examination (Notre Dame, IN: University of Notre Dame Press,1989): 134-135. 

Image: The Making of a Fresco Showing the Building of a City (‘Making a Fresco’) (1931) is one of four murals in the Bay Area painted by Mexican artist Diego Rivera (1886-1957).

Let Thomas Merton Rest in Peace

George Weigel has a piece on First Things today about Thomas Merton titled Among the 'Progressed' in which he says:

I’ve often had the sneaking suspicion that, had he lived beyond his untimely death in 1968, Merton might—just might—have become one of the first Catholic neoconservatives.

As I say in a comment on the site, one ought to have enough respect for the memory of Thomas Merton to refrain from using him to attempt to promote neoconservatism. That Merton would have become one of the first Catholic neoconservatives had he lived is pure fantasy. If there is an alternate universe in which an alternate Thomas Merton is alive and well at the age of 97, an alternate George Weigel is free to try to recruit him as a neoconservative, a Republican, a Tea Party member, or whatever he chooses. But in this universe, Merton is long dead, and no matter how much wishful thinking anyone engages in, Merton cannot posthumously become a neoconservative.

Alabama Bishops, Immigration, and the First Amendment

Alabama Bishops from several denominations have sued to strike down an Alabama law that "makes it a crime to transport, harbor or rent property to people who are known to be in the country illegally, and it renders any contracts with illegal immigrants null. To some church leaders — who say they will not be able to give people rides, invite them to worship services or perform marriages and baptisms — the law essentially criminalizes basic parts of Christian ministry." As the Catholic Archbishop puts it, the law “attacks our core understanding of what it means to be a church.” See here.

At first glance, the religious challenge to the law would seem doomed. Employment Division v. Smith held that a generally applicable statute that hits religion does not give rise to a freedom of religion issue. On the other hand, Smith contains an exception for those religion claims that can be combined with another constitutional claim (the hybrid exception). The complaint as filed alleges a number of hybrid rights including association and equality. If the Bishops win on this claim, the case will surely go to the Supreme Court unless the Alabama law is wholly preempted by conflicting federal law.

Missing from the original complaint, however, is an even stronger claim. The Alabama Constitution (one of the longest in the world) specifically refers to and  rejects Employment Division v. Smith (nothing prevents the states from affording more generous religious protection than provided by Smith). I would think this should be added to the original complaint if it has not been done so in the past week.

It will be interesting to see how conservative politicians line up on their hostility to immigrants versus their commitment to religious freedom.

Wave of Illegal, Senseless and Violent Evictions Swells in Port au Prince

Mathias O is 34 years old.  He is one of about 600,000 people still homeless from the January 2010 earthquake in Haiti.  He lives with his wife and her 2 year old under a homemade shelter made out of several tarps.  They sleep on the rocky ground inside.  The side tarp walls are reinforced by pieces of cardboard boxes taped together.  Candles provide the only inside light at night.  There is no running water.  No electricity.  They live near a canal and suffer from lots of mosquitoes.  There are hundreds of families living in tents beside him.  This is the third tent community he has lived in since the earthquake. 

 

The earthquake made Mathias homeless when it crushed his apartment and killed his cousin and younger brother.  He and his wife first stayed in a park next to St. Anne’s Catholic Church.  Then the family moved to what they thought was a safer place, Sylvio Cator stadium.  They put up a tent on the lawn inside the stadium and stayed there for several months.  The authorities then moved them just outside of the stadium so the soccer team could practice.  They lived in a tent outside the stadium with 514 other families for over a year until they were ordered to leave in July 2011.  Each family was told they had to leave and were given 10,000 Goudes (about $250 in US dollars) to assist in their relocation.  Where did the 514 families go?  No one knows for sure.  About 150 families stayed together and live under tarps beside Mathias.  Some used the money to build new tarp shelters elsewhere and some used it for food.  The rest?  No one knows.  No one is keeping track.

 

When I asked what Mathias would like to say to the human rights community, he said, “The life of the people living in the tents is not a human life.  Our human rights are not respected.  No institutions are taking care of us, we are the forgotten.  We want people to remember us and help us to have the human life we should have.  It's not our choice to live this way.  The situation of life bring us here.  We hope to have a normal life.  But the hope is very far from us.”

 

The International Organization for Migration (IOM) reported August 19, 2011 that there are about 594,800 people living in about 1000 displacement camps in Haiti.  Most want to leave but have nowhere to go.  Nearly 8000 people have been evicted in the last three months.  Their report concludes by saying “With nearly 600,000 internally displaced persons still in camps, the scale of Haiti’s homeless problem remains daunting.”

 

Complicating the problem is the increasing wave of forced evictions happening in Haiti.  These are evictions without any legal process, often by police, frequently accompanied by violence.

 

Landowners use armed police and private security to carry out evictions and scare people away.  They rarely go to court because they usually cannot prove they own the land.  So they resort to brute force to overwhelm the families.  Police and private security use guns, machetes, batons and bulldozers to push people out.

 

The administration of President Michel Martelly has apparently given a green light to widespread violent demolition of camps without any legal process.  Though the administration announced plans to relocate families from six camps, nothing has happened. 

 

The Haitian human rights law firm Bureau des Avocats Internationaux (BAI) reports that before June they were receiving several threats of forced evictions per month.  Since June, the threats increased to several per week.  Now they are receiving several reports of forced evictions every day.

 

Dozens of human rights activists called on the United Nations to condemn these illegal evictions and to make Haiti impose a moratorium on illegal evictions until there are realistic plans to house the families being uprooted. 

 

These evictions are in defiance of a ruling by the Inter American Commission on Human Rights which issued precautionary measures asking Haiti to cease illegal evictions.   On November 18, 2010, the IACHR expressed concern over forced evictions of the displaced and sexual violence against women and girls. Specifically, the IACHR wrote Haiti asking the government to “offer those who have been illegally expelled from the camps a transfer to places that have minimum health and security conditions, and then transfer them if they so agree; guarantee that internally displaced persons have access to effective recourse before a court and before other competent authorities; implement effective security measures to safeguard the physical integrity of the inhabitants of the camps, guaranteeing especially the protection of women and children; train the security forces in the rights of displaced persons, especially their right not to be forcibly expelled from the camps; and ensure that international cooperation agencies have access to the camps.”   

 

Residents recently surveyed by BAI and the University of San Francisco said money given them upon eviction was insufficient to relocate or pay rent anywhere.  Small grants worth about $250 are not enough to build even the most basic 12x10 shack with plywood walls, a corrugated metal roof and concrete floor – leaving many of those evicted without any shelter except to go put up a tarp in another displacement camp.  No wonder that 35 percent of them reported being the victims of physical harm or threats of physical harm.   

 

The following are recent examples of illegal forced evictions, all have occurred since Martelly became President.

 

On May 27, 2011, at 6am, Haitian National Police wielding machetes and knives stormed a camp in the Delmas 3 neighborhood destroying about 200 makeshift tents, and forcing people to flee, according to Jacqueline Charles of the Miami Herald.   There was no court order of eviction.

 

In early June, Haitian National Police showed up and began destroying tarps and tents of hundreds of families camped at the intersection of Delmas and Airport Roads.  The police fired shots and swung batons as people protested in front of their camp.   This was done without legal authority.

 

Later in June, at another camp in Delmas 3, truckloads of agents armed with machetes descended on another camp and dismantled it.  After the tents were destroyed a bulldozer showed up and leveled what was left. This too was without any legal process.

 

In a midnight raid on July 3, 2011, police and private security forces completely destroyed tents of about 30 families in Camp Eric Jean-Baptiste in the Port au Prince suburb of Carrefour.

 

On July 18, 2011, Haitian National Police entered the displacement camp in the parking lot of Sylvio Cator sports stadium and destroyed the tents and belongings of 514 families.  There was no lawful process.  People were given about $250 to pay for new shelters.  Many told human rights monitors that they did not want the money, they wanted to stay but accepted the money as they had no other options.  These illegal evictions were condemned by the UN Office of High Commissioner for Human Rights.

 

On July 27, 2011, members of the Haitian National Police arrested, assaulted and ransacked tents of internally displaced people protesting against the illegal eviction of dozens of families at Camp Django.  Camp residents were given about $125 for their destroyed shelters. 

 

So, what should be happening?

 

The Interim Haiti Recovery Commission, co-chaired by former US President Bill Clinton, just pledged $78 million to fund a housing plan for 16 districts in Haiti.  But, as Haiti Grassroots Watch reports, even if all the planned repairs and construction of 68,025 units takes place, that is only 22 percent of what is needed since there are over 300,000 families and 600,000 people living in camps. 

 

It is time for the Interim Haiti Recovery Commission, the UN, The US and the international community to stand up for the human rights of the hundreds of thousands of people like Mathias.   Housing is a human right.  Using force to evict homeless survivors of Haiti’s earthquake from one spot to make them homeless in another place is illegal, senseless and violent.   Mathias and his family deserve much more.

 

 Bill is a law professor and human rights advocate at Loyola University New Orleans.  Bill is a long time Haiti advocate in his work with the Center for Constitutional Rights and the Institute for Justice and Democracy in Haiti.  Vladimir Laguerre helped with this article.  You can reach Bill at[email protected] 

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Katrina Pain Index 2011: Race, gender, poverty

Six years ago, Hurricane Katrina hit the Gulf coast.  The impact of Katrina and government bungling continue to inflict major pain on the people left behind.  It is impossible to understand what happened and what still remains without considering race, gender, and poverty.  The following offer some hints of what remains.

 

$62 million.  Amount of money HUD and the State of Louisiana agreed to pay thousands of homeowners because of racial discrimination in Louisiana’s program to disburse federal rebuilding funds following Katrina and Rita.  African American homeowners were more likely than whites to have their rebuilding grants based on much lower pre-storm value of their homes rather than the higher estimated cost to rebuild them.  Source:  Greater New Orleans Fair Housing Action Center.

 

343,829.   The current population of the city of New Orleans, about 110,000 less than when Katrina hit.  New Orleans is now whiter, more male and more prosperous.  Source: Greater New Orleans Community Data Center. 

 

154,000.   FEMA is now reviewing the grants it gave to 154,000 people following hurricanes Katrina, Rita, and Wilma.  It is now demanding that some return the long ago spent funds!  FEMA admits that many of the cases under review stem from mistakes made by its own agency employees.  FEMA’s error rate following Katrina was 14.5 per cent.  Michael Kunzelman and Ryan Foley, Associated Press.

 

65,423.   In the New Orleans metropolitan area, there are now 65,423 fewer African American women and girls than when Katrina hit.  Overall, the number of women and girls decreased since Katrina by 108,116.  Source:  Institute for Women’s Policy Research.

 

47,738.   Number of vacant houses in New Orleans as of 2010.  Source: GNOCDC.

 

3000.  Over three thousand public housing apartments occupied before Katrina plus another thousand under renovation were bulldozed after Katrina.  Less than ten percent, 238 families, have made it back into the apartments built on the renovated sites.  Only half of the 3000+ families have even made it back to New Orleans at all.   All were African American.  Source: Katy Reckdahl, Times-Picayune.

 

75.  Nearly seventy five percent of the public schools in New Orleans have become charters since Katrina.  Over fifty percent of public school students in New Orleans attend public charter schools.  There are now more than thirty different charter school operators in New Orleans alone.  The reorganization of the public schools has created a separate but unequal tiered system of schools that steers a minority of students, including virtually all of the city’s white students, into a set of selective, higher-performing schools and most of the city’s students of color into a set of lower-performing schools.

Sources: Andrew Vanacore, Times-Picayune; Valerie Strauss, Washington Post; Institute on Race & Poverty of University of Minnesota Law School.

 

70.  Seventy percent more people are homeless in New Orleans since Hurricane Katrina.  People living with HIV are estimated to be homeless at 10 times the rate of the general population, a condition amplified after Hurricane Katrina.  Source: Unity for the Homeless and Times-Picayune.

 

59.  Less than 60 percent of Louisiana’s public school students graduate from high school with their class.  Among public school children with disabilities in New Orleans, the high school graduation rate is 6.8%. 

Source: Education Week and Southern Poverty Law Center.

 

34.  Thirty four percent of the children in New Orleans live in poverty; the national average is 20%.  Source: Annie Casey Foundation Kids Count 2011.  

 

11.  Eleven New Orleans police officers convicted or plead guilty to federal crimes involving shootings of civilians during Hurricane Katrina aftermath.  Source: Brendan McCarthy, Times-Picayune. 

 

10.  At least ten people were killed by police under questionable circumstances during days after Katrina.   Source: Times-Picayune

 

3.  A three-fold increase in heart attacks was documented in the two years after Katrina.  Source: Tulane University Health Study. 

 

Number unknown.  The true impact of the BP oil spill in terms of adverse health effects is vast but unknown.  Delays by the federal government in studying the spill’s physical and mental health effects hinder any ability to understand these issues with accuracy.  A year after the spill, more people are reporting medical and mental health problems.  Source:  Campell Robertson, New York Times and National Geographic.

 

This was coauthored by Bill Quigley and Davida Finger, both are professors at Loyola University New Orleans College of Law.  Bill is also Associate Director of the Center for Constitutional Rights.  You can reach Bill at [email protected] and Davida at [email protected]

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The “Truncated Autonomy” of Raz’s Liberal Perfectionism

 

The most explicit and thorough statement of Joseph Raz’s intriguing theory of “liberal perfectionism” is found in his invaluable book, The Morality of Freedom (1986) wherein “the end of liberal political morality is the good of an autonomous moral life.” In Constitutional Goods (2004) Alan Brudner proffers a succinct formulation of Razian liberal perfectionism:

“Autonomy…is essential to well-being, since personally endorsing one’s goods is essential to one’s deriving fulfillment from pursuing and accomplishing them. Because, moreover, the achievement of autonomy depends on the existence of a public culture offering a wide array of valuable pursuits, it is a common good requiring state action to realize it.”

But Brudner identifies, by my lights, a significant shortcoming in Raz’s formalist conception of autonomy that leaves us with a rather attenuated form of perfectionism: “Raz argues that, although a morally valuable goal is one that truly conduces to well-being, an agent can find valuable only what is socially valued.” Brudner labels this the “social dependency thesis,” as it relies on a formalist rendering of autonomy effectively “empty of specific content” insofar as it is without criteria whereby to independently (i.e., autonomously) assess the notion of well-being. His critique is as follows:

“This thesis implies that the ideal of well-being is attainable only in a well-ordered society where the available options are indeed morally valuable, for only there are the conventional fetters to well-being overcome. However, even in a well-ordered society, the social dependency thesis can avoid moral conventionalism only if it is possible for an agent to value a goal because it is independently valuable and not simply because it is socially valued. Raz affirms this possibility. He argues that goals are adopted because they are thought to serve well-being, and it is possible to have true and false beliefs about whether they do because well-being is distinguished from contentment. Yet that there is a distinction between the valued and the valuable will not by itself save moral autonomy from the clutches of the social dependency thesis. An agent will not be able to distinguish a false social belief about the goals that conduce to well-being from a true one unless he or she has an independent conception of what well-being is—independent, that is, of social opinion. If she does, it is difficult to see why the social dependency thesis should be true; but if she does not, then she will be dependent on social opinion after all. Raz himself offers no such independent conception, or rather he offers a circular and decidedly unhelpful one. Well-being, he says, consists in the successful pursuit of morally valuable ends, and a morally valuable end is one that conduces to well-being. But then the agent, who can value only what is socially valued and who has no way of connecting socially valued ends to a non-circular criterion of the morally valuable is effectively left with a morality of convention.”

Thus, writes Brudner, “Raz’s perfectionism, in failing to generate a rational content and scheme of fundamental ends, is not perfectionist enough given its commitment to autonomy.” Or, in other words, a formalistic conception of autonomy leaves us with an attenuated perfectionism. This may be analogous to, if not perhaps in some ways connected with, Isaiah Berlin’s influential (or infamous) analysis of freedom, at least as discussed by Jon Elster in Sour Grapes: studies in the subversion of rationality (1983). Indeed, it might be the case that Raz is assuming or perhaps influenced by Berlin’s (or something akin to Berlin’s) understanding of freedom:

“What is freedom, freedom tout court, being a free man? We may distinguish between two extreme answers to this question. One is that freedom consists simply in being free to do what one wants to do, irrespective of the genesis of the wants. In a well-known passage Isaiah Berlin argues against this notion of freedom: ‘If degrees of freedom were a function of the satisfaction of desires, I could increase freedom as effectively by eliminating desires as by satisfying them; I could render men (including myself) free by conditioning them into losing the original desire which I have decided not to satisfy.’ And this, in his view, is unacceptable. By this argument Berlin was led to the other extreme in the spectrum of definitions of freedom: ‘It is the actual doors that are open that determine the extent of someone’s freedom, and not his own preferences.’ Freedom is measured by the number and importance of the doors and the extent to which they are open [one might say this is Berlin’s version of the ‘social dependency thesis’]. Disregarding the last clause, which appears to conflate formal freedom and real ability, this means that freedom is measured by the number and non-subjective importance of the things one is free to do [emphasis added]. True, Berlin suggests that the notion of importance should also take account of the centrality of freedoms to the individual, but this would seem to smuggle in preferences again, contrary to his main intention. Importance, in his view, must be divorced from the individual’s own evaluation of importance.”

It seems Raz’s notion of autonomy is predicated upon or at least endorses Berlin’s understanding of freedom although Raz is, to be sure, sensitive to a welfarist conception of the satisfaction of desires. As Elster explains, the degree of freedom depends on the number and importance of the things one (i) is free to do and (ii) autonomously wants to do.” The social dependency thesis appears in the end to make (ii) wholly dependent upon or a function of (i) such that, for example, it’s irrelevant that I may “live in a society that offers me a great many important opportunities, which do not at all overlap with what I want to do.” Raz needs a more robust or substantive conception of autonomy that is able to invoke, as it were, independent criteria of “the good” or “the good life” which, in turn, allow for truly free individual judgment and assessment. The social dependency thesis and corresponding lack of an independent criterion or criteria of the good (or self-fulfillment) or what Brudner terms a “rational content and scheme of fundamental ends,” preclude full appreciation of the fact that “it is better to desire things because they are desirable than to do so because they are available,” or at least precludes the would-be autonomous person from knowing whether or not her choices are wholly or largely determined by the latter condition. Perhaps, for example, I have inordinate desires for consumption based on the (possibly false) belief that it promotes happiness or well-being: how can I be sure that my desires are not shaped by the fact that I live in a society which provides a plethora of opportunities for consumption (including, for many, conspicuous consumption), the socially regnant or widespread de facto or default belief being that a life of consumption is conducive to or promotes well-being?

As Elster writes elsewhere, liberalism, in our case Razian perfectionist liberalism, “neglects the endogeneity of preferences. Liberalism advocates the free choice of life-style, but it forgets that the choice is to a large extent preempted by the social environment in which people grow up and live,” a social environment today that is defined by the ethos of the latest form of capitalism. We might consider the possibility that there exists the potential for a space that might be carved out betwixt and between the liberalism of a capitalist democracy compatible with the truncated autonomy of Razian perfectionism, and a dictatorially or unduly paternalist (i.e. externally) imposed conception of the good life. Elster argues this space can be defined by a form of individual and collective self-paternalism: “If people do not want to have the preferences they have, they can take steps—individually or collectively—to change them.” Does the apparent widespread preference for (or belief in the good of) a life of consumption rule out the possibility of generating truly independent or substantively autonomous conceptions, and the preference for same, of the good life (Marxist or otherwise)? What steps might we take to generate truly autonomous conceptions of the good life (and preferences for same) beyond conceptions of welfare, well-being or happiness yoked largely to a life of consumption (including aesthetic pleasures and entertainment as well as material goods in the ordinary sense)? What might religious worldviews contribute to our understanding of the contours of “the good life?”     

References:

• Brudner, Alan. Constitutional Goods. New York: Oxford University Press, 2004.
• Elster, Jon. Sour Grapes: studies in the subversion of rationality. Cambridge, UK: Cambridge University Press, 1983.
• Elster, Jon. “Self-realisation in work and politics; the Marxist conception of the good life,” in Jon Elster and Karl Ove Moene, eds. Alternatives to Capitalism. Cambridge, UK: Cambridge University Press, 1989.
• Raz, Joseph. The Morality of Freedom. New York: Oxford University Press, 1986.

Image: Hieronymus Bosch, The Garden of (Earthly) Delights (c. 1500)

Pacifism, World War II, and Modern Warfare

I have been thinking about the debate over pacifism this week in anticipation of a reading group discussion. Reinhold Niebuhr wrote an essay in 1950 where he argued that if pacifism was claimed to be pragmatically effective, it was heretical in that it did not appreciate the sinful character of humanity. (I would guess he would explain the success of Ghandi and the later success of Martin Luther King as exceptions that proved the rule (though the Civil Rights movement was ultimately backed by the violence or threats of violence of the Federal government). To the extent, that pacifism is rooted in the “turn the other cheek” philosophy, it rules out not only war, but also police, courts, and law. Niebuhr argues that pacifists who point to the Sermon on the Mount justification are biblically correct, but, he suggests, this is not a pragmatic prescription for human life. Nonetheless, he suggests that the position of the Christian Church is not rightly pacifistic, but pragmatic. His argument for “Christian” pragmatism is unclear to me – at least in the essay I read.

I am told that Howard Zinn once gave a speech on Cape Cod in support of pacifism to a liberal audience. Zinn’s audience was with him when he described the reasons for the revolt against England and our own Civil War. But when Zinn got to WWII, he got significant pushback from the audience. They believed that resisting the monstrosity of the Nazis was worth any price. Zinn held his ground, but the going got pretty rough.

Whatever one things of pacifism, it should be recognized that the costs of World War II were truly devastating. It is easy for Americans to underestimate the horror of War II in Europe alone (thus leaving out the firebombing and atomic bombs used against on Japan): in other words, the human slaughter of millions of  men, women, and children, the tens of thousands of rapes, the wanton pillaging of  villages and destruction of cities across Europe, the untold numbers of homeless refugees and the concomitant loss of family members, the destruction of the economies, the post-war killings (often without trial) in retaliation of “collaborators”  (a term applied to genuine criminals, but often as an excuse to kill those whose politics were inconvenient to the successive regime), and the general undermining of respect for human life For an excellent account of the staggering losses, the human tragedies, and the moral degradation, see Tony Judt’s Postwar: A History of Europe Since 1945, chs. 1-2.

Without deciding the general issue of pacifism or not, in light of the probability and fact of killing innocent civilians in large numbers, modern warfare strikes me as indefensible. It surely cannot be defended by mouthing democratic slogans. It is now and has been for many years hard to believe that the populations of Iraq or Afghanistan are better off because the United States decided to give them a helping hand by raining destruction across their countries.

 

Religion and Taxes

By Alexander E. Sharp

[From Sightings  8/18/2011]

[The Rev. Alexander E. Sharp has served since 1996 as the founding executive director of Protestants for the Common Good, a faith-based education and advocacy organization in Illinois. He received his M.Div. from the University of Chicago Divinity School in 1996 and has a Masters of Public Affairs from Princeton University.]

          The deficit and budget battles in Washington make clear that the divisions between us are deep, even spiritual. The fight is not over the size of the deficit, nor even about expenditure cuts. It is about taxes as the lifeblood of government.

Why are taxes so important? The playbook is no secret. Grover Norquist, the founder of Americans for Tax Reform and the driving force behind the “no-tax-increase” stance, said it over twenty years ago:  “Our goal is to shrink government to the size where we can drown it in a bath tub.” The way to do that is to cut taxes.

          The George W. Bush administration supported this goal. It happily organized the political religious right concerned about social issues: pro-choice, sexual orientation, sex education, and school prayer. Many of the religious right feared that secular values were eroding their fundamentalist reading of the Bible. Their numbers swelled Republican ranks.

          Those seeking to limit the size of government surely continue to welcome this faith-based support, but they now have a new moral underpinning: Ayn Rand as their resident philosopher.  We do not need to tackle her 800-page novels to get her message. The title of one of her shorter essays says it all: “The Virtue of Selfishness.” In it she writes, “Altruism is incompatible with freedom, with capitalism, and with individual rights. One cannot combine the pursuit of happiness with the moral status of a sacrificial animal.” For her, the Great Commandment to love your neighbor is tantamount  to “moral cannibalism.”

          Michele Bachmann brings another clear spiritual perspective. She received her legal training at Oral Roberts University School of Law. The curriculum was based on Christian Reconstructionism, which argues that “God granted certain jurisdictional authority to the government, the church, and the family—therefore any government action exceeding its God-granted authority is in violation of God’s commands.” Under this view, it is not within the government’s “authority” to take care of the poor.

          Recalling her own family’s struggle against poverty as she was growing up, she has said, “We had our faith in God, we depended on our neighbors, we depended on ourselves, and we just did without… And we were just grateful for what we had. We knew that one day things would be better than they were. And God was faithful, and they were better.”

          Her view of government, perhaps shaped by her law-school training, may explain her questioning of Treasury Secretary Timothy Geithner in a congressional hearing over federal bailout programs. She asked, “What provision in the Constitution could you point to that would give authority for the extraordinary actions taken by the Treasury since March of ‘08? What specifically in the Constitution?” In the current Iowa primary she is calling for the abolition of the Departments of Education, Energy, and Commerce: “Wherever we can cut and abolish, we should cut and abolish.”

          Those who believe government has a role in providing society’s safety net think it is essential to give a hand to those whom society counts least. Protestants for the Common Good, for example, supported the recent tax increase in Illinois because we were both saddened and shocked at the cuts in human services. Aid to children, the elderly, the mentally ill, and the disabled has been reduced by $3.1 billion since 2002 and $600 million in the current year alone.

          Protestants for the Common Good believe that freedom exists in two forms: we are free from loyalty to anyone or thing other than God; and we are free for the opportunity to serve all whom God loves. We are free to care for, and love, others. That’s what our faith calls us to do.

          The political religious right may argue that they want the same things we do.  But they would say that it is freedom from government that makes it possible for people to flourish.  The best way to help others is to get government out of the way.

Those who are for smaller government rarely express  concern for people in need, even though almost twenty percent of Illinois children live in poverty, only about half of the people who need treatment for mental illness receive it, and after health care reform, there will be over 700,000 Illinoisans without health coverage.

          Those of us who think government is central to establishing community and serving others have been enablers in this debate. We have not insisted that the political religious right, and those who oppose raising the debt ceiling, explain why the current deficit is so high. We have not pressed for a public discussion of how the economy performed under the tax cuts and financial deregulation starting in 2000. How can the views of Ayn Rand be reconciled with Jesus’ concern for the poor?

          There is no Christian answer to complicated matters of public policy, but there are spiritual values that should inform how we think about such questions. They are expressed as ideology and pursued through politics and the media. But they have an underlying spiritual basis that is as profound and explicit as it was at any time in our national history.

References 

Sarah Posner, “The Perry vs. Bachmann Primary at Liberty University,” Religion Dispatches, July 11, 2011.

----------

Sightings comes from the Martin Marty Center at the University of Chicago Divinity School

More on Sara Miles's Take This Bread

For excellent commentary on the book, see Susan Stabile: http://susanjoan.wordpress.com/2011/08/16/being-bread/

The Eucharist and The Poor: Sara Miles and John Howard Yoder

Some time ago, I mentioned that I was looking forward to reading Take This Bread by Sara Miles. Miles, a former journalist and professional cook, who writes like a dream, was raised by non-religious parents, but she entered an iconoclastic Episcopal church in San Francisco, and her life was permanently changed. At Saint Gregory of Nyssa Epicopal, everyone is invited to take the Eucharist, baptized or not. Jesus ate with sinners and the priests at St. Gregory believed in an open church. Miles took the Eucharist and was transformed. She became a regular and began to believe that she was called to have a pantry in the church at the same altar where she received the Eucharist. As she describes it, the upper middle class parishioners at St. Gregory's were initially frightened about the possibility of having the poor so frequently present in their church. But she won out and ultimately helped to establsh nine pantries in the city.

Miles is earthy, theologically independent, and hilarious. She has a wonderful capacity to describe people - especially the poor guests and volunteers - most of whom she loves, but does not romanticize.

Miles believes that the pantry is a sacrament - another form of the Eucharist. Although she convinced the church to have a pantry open one day a week and one Sunday afternoon a month, she succeeded in her argument by appealing to their responsibility to help the poor, not to the sacramental character of the pantry. But I think she is right about the Eucharist. Consider this statement from John Howard Yoder in an essay, "The New Humanity as Pulpit and Paradigm," (which I happened to be reading this morning for a reading group): "Our history of centuries of speculation and controversy about what happens to bread and wine when a certain special person speaks certain special Latin words over them obscured from our memory for a long time the fact that the primary  meaning of the Eucharistic gathering in the Gospel and Acts is economic. It was the fulfillment of the promise of the Magnificat that the rich would give up their advantages and the poor would be well fed. Luke's report probably is intended to signal the fulfillment of the mandate of Deuteronomy that "there should be no poor among you." 

The Tragedy and Stupidity of the President's Reelection Strategy

Robert Reich reports enormously disturbing news about President Obama's political strategy: "I’m told White House political operatives are against a bold jobs plan. They believe the only jobs plan that could get through Congress would be so watered down as to have almost no impact by Election Day. They also worry the public wouldn’t understand how more government spending in the near term can be consistent with long-term deficit reduction. And they fear Republicans would use any such initiative to further bash Obama as a big spender.

    "So rather than fight for a bold jobs plan, the White House has apparently decided it’s politically wiser to continue fighting about the deficit. The idea is to keep the public focused on the deficit drama – to convince them their current economic woes have something to do with it, decry Washington’s paralysis over fixing it, and then claim victory over whatever outcome emerges from the process recently negotiated to fix it. They hope all this will distract the public’s attention from the President’s failure to do anything about continuing high unemployment and economic anemia."

    I hope this is not true. If it is, (1) Obama cares more about his reelection than the public interest; (2) Obama has no conception of his capacity and moral duty to lead the public on how the problem of unemployment needs to be solved; (3) Obama is deluded if he thinks the American people can be distracted from the unemployment problem; (4) Obama can rightly be charged with not trying to seriously address the unemployment problem; and (5) Obama apparently does not realize that if he tried  seriously to address the unemployment problem, he not only would be backed by his party and the public, but also if the Republicans predictably refused to go along and continued with their smoke and mirrors approach to dealing with unemployment, their intransigence would be counted against them in the Presidential, House, and Senate elections.

Obama yesterday chided Congress for putting party before country. If Reich is right, Obama is putting himself ahead of party and country.

Republicans and Standard and Poors

A Standard and Poors Senior Director affirmed that one of the reasons for the downgrade was the fact that several lawmakers expressed skepticism that going into default would have serious consequences. As he put it, “That a country even has such voices, albeit a minority, is something notable.” He added. “This kind of rhetoric is not common amongst AAA sovereigns.” See here.

For a litany of the Republic remarks in this vein combined with some rather amazing pronouncements about the stock market, see here

Saving Capitalism from Itself

The remarkable reformer, lawyer, and jurist, Louis D. Brandeis,* attempted to persuade the partisans of plutocracy that it was in their best interests to reform capitalism if they were concerned to save it: “the great captains of industry and of finance,” he warned them “…are the chief makers of socialism.” And of course Brandeis himself did much to humanize (in the broadest sense) capitalism in the first decades of the last century. But the truth of his rhetorical warning is an open question: does the behavior of corporate and finance capitalists contribute to rendering socialist theories and practices more palatable to masses experiencing the sudden thwarting of both their needs and fantasies? Is floundering in the conditions of material uncertainty and psychological insecurity conducive to rendering hearts and minds more receptive to utopian visions and radical socio-economic reforms and experimentation of socialist pedigree?

* See Melvin I. Urofsky’s biography, Louis D. Brandeis: A Life. New York: Pantheon Books, 2009.

Greg Kalscheur's "Red Mass: 2009 Homily"

"Red Mass: 2009 Homily"

University of Detroit Mercy Law Review, Vol. 87, No. 4, 2010
Boston College Law School Legal Studies Research Paper No. 234

Gregory A. Kalscheur, SJ, Boston College - Law School
Email:  [email protected]

This homily was delivered by Fr. Kalscheur at the Detroit Red Mass celebrated at Sts. Peter and Paul Church in Detroit, Michigan on September 29, 2009. The Red Mass (a Mass at which red vestments are worn, marking the beginning of the new judicial term and invoking the guidance of the Holy Spirit), is attended by judges, lawyers, and public officials of all faiths asking God’s blessings in their work as servants of the law seeking to work more effectively for justice and freedom for all. The homily invited those present to reflect on a critical question: who are we becoming as people as we live out our vocations as lawyers, judges, and public servants? The challenge is to live lives that do justice with humility, gentleness, and civility, responding in gratitude to all that God has done for us with a life that reflects God’s faithful love in all of our relationships.

Have You Ever Considered the Lives of Truck Drivers?

I had not, but David Gibson's post at dotcommonweal on spiritual insight and truck drivers is well worth reading. Make sure you read the link he points us to.

Why No More Hatfields?: The Voting Rights Act and the Constitution

Former Oregon Governor and Senator Mark Hatfield died last week. Hatfield was famous for his independence of Republican Party shackles. He opposed the Vietnam War, a balanced budget amendment, capital punishment, and concentrations of power including corporate power. But he was also anti-abortion and a genuine fiscal conservative. He reached across the aisle when he thought it appropriate and tried to be a constructive force in the Senate.

As David Swarz in  religiondispatches observes, “It is hard to imagine such bi-partisanship today.” He continues: “Perhaps renewed attention to the more flexible and civil politics of an earlier era can offer a way out of today’s angry brinksmanship.” I think it worth reflecting on why there are no more Hatfields in the Republican Party. There is more at work than personalities and attention to civility. The question is why the Republican Party has swung so far to the right. Justices Scalia and Thomas would have been at the outer 3% of the Republican Party in the 60’s. Now they are Republican heroes. And, in the Democratic Party, what happened to the conservative Southern wing? If there are no more Mark Hatfields, there are no more Strom Thurmonds and many others less reactionary, but far to the right of the current brand of Democrats.

Rick Pildes argues in the April issue of the California Law Review that the main cause of the shift in politics of both parties was the Voting Rights Act. The Voting Rights Act vastly diminished discrimination against blacks particularly in the South. As a result, African Americans poured into the Democratic Party making it more liberal, and conservative whites in the Democratic Party switched to the Republicans. This took decades in part because shifting party allegiance is a major shift in political identity. But the shift has taken place and the result has been profound. Another aspect of the Voting Rights Act has been the requirement to create safe seats for African American representatives when polarized voting exists and when districts can be created that conform with traditional districting criteria. The result has been that representatives of those districts have been more liberal, but by concentrating black votes in single districts, Republicans with few minority voters in their districts are prone to be numerous and more conservative. It is instructive to observe that no Democratic candidate for President  has received a majority of the white vote since the passage of the Voting Rights Act (and perhaps since the passage of the Civil Rights Act of 1964).

Observers, including Pildes, point to other factors causing partisanship including the voting population in primaries, gerrymandering, and campaign finance. Moreover, the Voting Rights Act was not an isolated event. It was the product of a larger social movement which began to have effects on the parties even before passage of the statute.

Pildes regrets our hyperpolarization. Despite some proposals he makes, it would seem to be a large part of our future. It is not at all clear to me that polarization is our largest problem. Our largest problem (discussed by David Kennedy in the same issue of the California Law Review) is that the Framers of our Constitution were more afraid of power than of ineffective government. By establishing checks and balances the Framers made polarization effective. Ironically, our winner take all system in voting no longer gives us moderate parties (not that I favor moderate parties), but it discourages the kind of political diversity that ought to be represented in our legislatures. As some European countries demonstrate, it is possible to have a broad political spectrum and working majorities that give rise to effective government. Under our current structures, we have neither a broad political spectrum, nor an effective government.

American Violet: A Criminal Justice Story

 

The American criminal justice system is so dysfunctional that it presents well-intentioned people with a dilemma. Should good people cooperate with it? [….] My experiences as a prosecutor persuade me that prosecutors are more part of the problem than the solution. Many mean well, but the “lock ‘em up” culture is so pervasive that it defeats even people with the best of intentions.—Paul Butler[1]

The following is from the Wikipedia entry (notes and some links omitted) on a must-see film: American Violet. The movie is based on a true story. While it’s been out for a couple of years, we just got ‘round to viewing it on Sunday. 

Plot

Set in the midst of the 2000 presidential election, American Violet tells the story of Dee Roberts (Nicole Beharie), a 24 year-old African-American single mother of four, living in a small Texas town (based after Hearne, Texas where the real incident took place). One day, while Dee is working a shift at the local diner, the powerful local district attorney (Michael O’Keefe) leads a drug bust, sweeping Dee’s housing project. Police drag Dee from work in handcuffs, dumping her in the women’s county prison. Indicted based on the uncorroborated word of a single and dubious police informant facing his own drug charges, Dee soon discovers she has been charged as a drug dealer.

Even though Dee has no prior drug record and no drugs were found on her in the raid or any subsequent searches, she is offered a hellish choice: plead guilty and go home as a convicted felon or remain in prison and fight the charges thus, jeopardizing her custody and risking a long prison sentence. Despite the urgings of her mother (Alfre Woodard), and with her freedom and the custody of her children at stake, she chooses to fight the district attorney. Dee works with an ACLU attorney (Tim Blake Nelson) and a former local narcotics officer (Will Patton) to take on the Texas justice system.

Historical Basis

The film is based on the civil rights lawsuit Regina Kelly v. John Paschall, filed on behalf of 15 African-American residents of Hearne, Texas who were indicted in November 2000 on drug charges after being rounded up in a series of drug sweeps the ACLU referred to as “paramilitary.” The lawsuit accused Paschall and the South Central Texas Narcotics Task Force of conducting racially motivated drug sweeps for more than 15 years in Hearne. In 2005, the ACLU and Robertson County settled and the plaintiffs agreed to dismiss the individuals named in the suit, including Paschall. The fictional Harmon County represents Robertson County, Texas, where John Paschall continues to serve as District Attorney. Regina Kelly continued to live in Hearne, Texas until 2009.

Comment:

Among the many issues raised by the film (e.g.: racism, poverty, the war on drugs, prosecutorial discretion), one has to do with what happens when poor people are charged with crimes in our criminal justice system. As Deborah Rhode forthrightly notes in her important book, Access to Justice (2004), the constitutional right to effective counsel[2] in criminal cases, “in practice…makes a mockery of formal guarantees.” The current structure of indigent defense gives, in other words, pride of place to ineffective representation. Thus, what Anthony Lewis wrote in Gideon’s Trumpet (1964) remains as true today as when it was first written:

“It will be an enormous social task to bring to life the dream of Gideon v. Wainwright [372 U.S. 335 (1963)]—the dream of a vast, diverse country in which every man charged with crime will be capably defended, no matter what his economic circumstance, and in which the lawyer representing him will do so proudly, without resentment at an unfair burden, sure of the support needed to make an adequate defense.”

Notes:

[1] A “Hip-Hop Theory of [Criminal] Justice” is outlined in chapter 7 (123-145) of Butler’s book (see ‘Essential Reading’ below). For a critique from the perspective of what purports to be a more accurate account of such a “theory,” see the student Note, “This is Real Hip-Hop…,” from the Georgetown Law Journal, 99.4 (2011): 1179-1225.

[2] Keeping in mind that even “grossly incompetent lawyering,” as Monroe Freedman says, “is not enough to establish ineffective counsel.” The current criminal justice system—especially for poor people—is, in Freedman’s pithy characterization, “unethical, unconstitutional, and intolerably cruel.”

Essential Reading:

• Abramsky, Sasha (2007) American Furies: Crime, Punishment, and Vengeance in the Age of Mass Imprisonment. Boston, MA: Beacon Press.
• Alexander, Michelle (2010) The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: The New Press.
• Banner, Stuart (2002) The Death Penalty: An American History. Cambridge, MA: Harvard University Press.
• Butler, Paul (2009) Let’s Get Free: A Hip-Hop Theory of Justice. New York: The New Press.
• Cole, David (1999) No Equal Justice: Race and Class in the American Criminal Justice System. New York: The Free Press.
• Cusac, Anne-Marie (2009) Cruel and Unusual Punishment: The Culture of Punishment in America. New Haven, CT: Yale University Press.
• Davis, Angela J. (2007) Arbitrary Justice: The Power of the American Prosecutor. New York: Oxford University Press.
• Garland, David (2010) Peculiar Institution: America’s Death Penalty in an Age of Abolition. Cambridge, MA: Belknap Press of Harvard University Press. 
• Irwin, John (2004) The Warehouse Prison: Disposal of the New Dangerous Class. Los Angeles, CA: Roxbury Publ.
• Mauer, Marc (2nd ed., 2006) Race to Incarcerate. New York: The Free Press.
• Mello, Michael A. (1997) Dead Wrong: A Death Row Lawyer Speaks Out Against Capital Punishment. Madison, WI: University of Wisconsin Press.
• Ogletree, Charles J., Jr. and Austin Sarat, eds. (2006) From Lynch Mobs to the Killing State: Race and the Death Penalty in America. New York: New York University Press.
• Patillo, Mary, David Weiman and Bruce Western, eds. (2004) Imprisoning America: The Social Effects of Mass Incarceration. New York: Russell Sage Foundation Publ.   
• Perkinson, Robert (2010) Texas Tough: The Rise of America’s Prison Empire. New York: Metropolitan Books.
• Reinarman, Craig and Harry G. Levine, eds. (1997) Crack in America: Demon Drugs and Social Justice. Berkeley, CA: University of California Press.
• Rhode, Deborah L. (2004) Access to Justice. New York: Oxford University Press.
• Rhodes, Lorna A. (2004) Total Confinement: Madness and Reason in the Maximum Security Prison. Berkeley, CA: University of California Press.
• Scheck, Barry, Peter Neufeld and Jim Dwyer (2000) Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted. New York: Doubleday.
• Tonry, Michael (1996) Malign Neglect: Race, Crime and Punishment in America. New York: Oxford University Press.
• Western, Bruce (2006) Punishment and Inequality in America. New York: Russell Sage Foundation Publ.

My prayerful brother Rick Perry

[Published at CommonDreams.org on August 3:]

Five Scriptures You Won’t Hear at Rick Perry’s Prayer Event

by Jim Rigby

As a native Texan, I’m used to crazy religion and crazy politics. So, the announcement of Gov. Rick Perry’s plans for “The Response,” a prayer event scheduled for Aug. 6 at Houston’s Reliant Stadium, was not a surprise.

But as a Presbyterian minister and community organizer, it’s part of my job to stand up for my neighbors. The use of the governor’s office to promote one religion in a country with such rich religious diversity is obviously unhealthy politics, but -- if one takes the Christian and Jewish scriptures seriously -- it is also unhealthy religion. Here are five rather important verses of scripture you aren’t likely to hear at “The Response”:

Don’t make a show of prayer

“And when you pray, do not be like the hypocrites, for they love to pray in public places to be seen by others… But when you pray, go into your room, close the door and pray to your heavenly parent, who is unseen.” (Matt. 6:5-6)

While Jesus never addressed the issues most important to some of this event’s co-sponsors, such as homosexuality and abortion, he did speak out against public displays of religion. Whatever Jesus meant by the word “prayer,” it seems to have been about the quiet and personal. The disciples had to ask Jesus how to pray, which is a pretty good indication that he wasn’t praying a lot publicly.  What he did say about prayer carried a warning label: “Don’t rub it in other people’s faces.”

God doesn’t withhold rain because we’ve done something wrong

“God causes the sun to rise on the evil and the good, and sends rain on the righteous and the unrighteous.” (Matt. 5:45)

Perry recently called Texans to pray for rain, which implies that God steers clouds toward the worthy. According to Right Wing Watch, one of the events co-sponsors has said the earthquake in Japan happened because the emperor had sex with the Sun Goddess. It may be a part of our lower nature to blame disasters on people we don’t like or understand, but Jesus taught that God sends rain on the just and unjust.  Furthermore, he said our love should be equally nonselective. 

I have chosen Christianity as my life’s religion, but when nonjudgmental love is taken out of its center, it becomes poisonous and predatory. The word “God” can be a helpful symbol for all the transcendentals of life, but the symbol becomes instantly pathological when used as a scientific explanation or political justification.

God doesn’t have favorites

Then Peter began to speak: “I now realize how true it is that God does not show favoritism.” (Acts 10:34)

When the Bible says that God is not a “respecter of persons” it means that God doesn’t have a favorite country or religion. The idea that God wants Christians to be in charge of other people violates Jesus’ teaching that we are to take the lowest place. We are to change the world by humble persuasion and good example, not by messianic coercion. The assumption that Christianity and America are God’s two favorite things will be particularly ironic, as the prayer event falls on the anniversary of the bombing of Hiroshima.

Worship by those who neglect the poor is offensive to God

“I hate, I despise your religious festivals; your assemblies are a stench to me… Away with the noise of your songs!  I will not listen to the music of your harps. But let justice roll on like a river, righteousness like a never-failing stream!” (Amos 5:21-24)

The prophet Amos chastised the religion of his day for praying to God while mistreating people.  Texas leads the nation in citizens who are uninsured, who work for minimum wage, and who die from unsafe working conditions on construction sites. Our state has the widest gap between rich and poor of any in the union.  If the governor wants to call us to repentance it should begin with our real sins against the poor not the imaginary sins dreamed up by his friends.

The heart of Christian ethics is being a good neighbor

When Jesus told the story of the Good Samaritan (Luke 10:30-37) it was to teach humility to a rich young zealot who thought he was approaching moral perfection.  The Samaritans were the scapegoats of the day. The rich young ruler would consider Samarians heretics and immoral people. Jesus used a merciful Samaritan as the example of ethical perfection.  It is a lesson many Christians have yet to learn.

One sponsor of the event, the American Family Association, is listed by the Southern Poverty Law Center as a hate group.  The group’s director of analysis for government and policy is quoted by the SPLC as saying that Hitler was “an active homosexual” who sought out gays “because he could not get straight soldiers to be savage and brutal and vicious enough.” He also said Muslims should not be allowed in the military or be allowed to build mosques in the United States. 

None of this analysis springs from malice. In fact, I must confess that I have a soft spot for Rick Perry. When the James Byrd, Jr. Hate Crimes Prevention Act in Texas was passed, I had the honor of pushing the wheelchair of Byrd’s mother into the governor’s office for the signing.  I privately thanked Perry for his courage in standing up to all the groups who had fought against the bill; I knew he might pay a political price for signing the bill.  Tears came to his eyes, and he said, “It’s the right thing to do.”

I can’t know what is in Perry’s heart, of course, but I do know the problem isn’t one politician but rather a nation that has embraced an unhealthy political arrogance undergirded by even unhealthier religious hubris.  The “prayer” that is most needed at this time is for each of us, believer or not, to go into our own heart and find the humility and empathy that is at the core of righteousness, political and spiritual.

Jim Rigby is pastor of St. Andrew’s Presbyterian Church in Austin, TX. He can be reached at [email protected], and videos of his sermons are available online at http://www.staopen.com/sermons/.

The Stock Market, Standard and Poors, and the Republican Party

The U.S. stock market declines for many reasons, but it is not controlled by a particular political party. The stock market responds to potential profits. Nonetheless, the recent declines of the stock market cannot be interpreted as an endorsement of the Republicans. The Republicans essentially threatened their way to what they wanted in the recent manufactured debt ceiling crisis deal, and the stock market decline in part reflects fears that the U.S economy is hostage to the Republican Party’s reluctance to do what is necessary to create jobs.

The Standard and Poors downgrade in the U.S. credit rating is somewhat more complicated. There is a case for the downgrade in that the Republicans will manipulate the debt ceiling legislation in ways that threaten our ability to pay our debts. When lunatics help rule the asylum, it is hard to believe we are in safe hands. Nonetheless, Standard and Poors has lost substantial credibility. This is the same Standard and Poors that gave extravagent ratings to the mortgage securities that brought our economy to its knees in 2008.  Without the negligence of the credit rating agencies (or their unwillingness to bite the hands of the banks that pay them), investors could have been warned to stay far away from these securities.

But, as Paul Krugman observed yesterday, the economic analysis of Standard and Poors in defence of the downgrade is just plain shoddy. As he suggests, the debt burden is neither a short- term nor a medium-term problem. Indeed, Robert Pollin, a professor of economics at the University of Massachusetts observes (discussed here) that in 2010, interest payments on the debt were 5.7 percent of total government spending.  The average for that ratio between 1950 and 2010 was 9.8 percent. Thus, our current debt burden is less than the historical average.

It is not to President Obama’s credit that he lost the rhetorical war to the Republicans. He allowed them to make our debt burden to appear as a crisis when it is not a crisis. Of course, not paying our bills would have been bad for the economy, but the politically manufactured debt ceiling crisis should not be confused with our long-term debt problem. Meanwhile, the problem all along has been jobs. And the failure to focus on that has been bad for the administration and the country.

 Fortunately, as the New York Times reported on its front page yesterday, the American public is fully aware that the jobs problem is far more pressing than our long-term debt problem, and the public though disgusted with Washington across the board is most angry with the Republicans in general and the Tea Party in particular. The frothings of Fox have not disguised the responsibility for the recent fiasco in Washington. The American public has its eye on the ball.

Nonetheless, the Republican Party will do what it can to stop the reelection of President Obama and that includes assuring that high unemployment continues. But the polls show that the American public is aware of that too. The country’s hope in the near term is that Republican legislators come to fear that an angry public will drive them from office for their economy-wrecking behavior and that they come to believe that the state of the economy has implications for their own political lives.     

 

When Faith and Law Collide: Revisiting Martin Luther King’s Letter From Birmingham Jail

The 2011 Journal of Law and Religion Fall Symposium

Hamline University, September 23, 2011

When Faith and Law Collide:

Revisiting Martin Luther King’s Letter From Birmingham Jail

"I agree with St. Augustine that ‘an unjust law is no law at all.’”  So begins Martin Luther King’s classic response, in his “Letter From Birmingham Jail,” to the charge leveled against civil rights activists that it was unreasonable to appeal to law in defense of one’s rights while disobeying laws in the pursuit of justice. The 2011 Journal of Law and Religion Fall Symposium will revisit the story behind the composition of “Letter From Birmingham Jail,” the questions it addressed, and the questions it continues to raise.

Symposium events include:

1.  A dialogue on the Letter with

—John Harrington, State Senator and former St. Paul Chief of Police

—Harry Boyte, SCLC field secretary and assistant to Martin Luther King

2.  Panel discussions on the sources cited in the Letter. Panelists include

—Pamela Alexander, Council on Crime and Justice, former State District Judge

—Rolf Jacobson, Luther Seminary

—Howard Lesnick, University of Pennsylvania School of Law

—John Mazis, Hamline University history department

—Jack Nelson-Pallmeyer, University of St. Thomas peace and justice program

—Timothy Polk, Hamline University religion department

—Jim Scheibel, Hamline School of Business, former Mayor of St. Paul

—Deanna Thompson, Hamline University religion department

3.  Keynote address:

“Letter From Birmingham Jail—From Whom, To Whom?”

Carlton Waterhouse, Indiana University School of Law

4.  Lifetime Achievement Award Luncheon honoring

—Abdullahi Ahmed An-Na’im who has been in the forefront of efforts to identify the concerns for human rights that Islamic, Christian and Jewish societies share. He has courageously advocated for democratic principles and human rights in Sudan and Muslim-majority countries throughout the world while he has worked on a better understanding of Islam in the West.

Registrants will receive a critical, annotated edition of Letter from Birmingham Jail, prepared and published by the Journal of Law and Religion for the symposium.

The 2011 Journal of Law and Religion Fall Symposium is sponsored by:

Journal of Law and Religion

Hamline University School of Law

Hamline College of Liberal Arts Department of Religion and Social Justice Program

Wesley Center for Spirituality, Service and Social Justice

Registration for the Journal of Law and Religion’s Twentieth Annual Fall Symposium on September 23, 2011 at Hamline University, “When Faith and Law Collide: Revisiting Martin Luther King’s Letter from Birmingham Jail,” is now OPEN. We cordially invite you to register online at http://law.hamline.edu/JLRSymposium.html.

"Clearly, this is not a pacifist God we serve"

[From Sightings, Aug. 4, 2011, University of Chicago Divinity School]

"Clearly, this is not a pacifist God we serve"

by Margaret M. Mitchell [Dean of the University of Chicago Divinity School and Shailer Mathews Professor of New Testament and Early Christian Literature]

These words were posted by Joseph Farah on WorldNetDaily.com at 1:00 a.m. on November 26, 2001, in the aftermath of 9/11. The full column, “The Bible and self-defense,” presented a battery of biblical evidence, from Old and New Testaments, for why Christians should “buy firearms as a first step to fighting terrorism.”

This article—by the evangelical Christian editor of WorldNetDaily.com, author of The Tea Party Manifesto: A Vision for an American Rebirth, and famous “Birther,” who has in print aggressively questioned both the American citizenship and the Christian identity of President Barack Obama—was quoted in full by Anders Behring Breivik in his compendium, “2083: A European Declaration of Independence,” published online hours before the Oslo attacks on July 22. Copying over 85 percent of the column verbatim (which he credits on p. 1334, not by author but by URL), Breivik makes a few telling changes to this source, which he treats as authoritative guidance from the American evangelical on the correct Christian view of arms and self-defense.

While Breivik accepts Farah’s biblically-based arguments about God’s endorsement of armament (though deeming them in need of further amplification via “Battle Verses of the Bible,” from another American evangelical biblical interpreter, Michael Bradley of Bible-Knowledge.com, of St. Charles, MO), he corrects the antiquated English diction of the KJV on the one hand (in 1 Sam 25:13 and Neh 4:18, carefully replacing it with the NASB translation), and updates the context from 9/11 America to the war of “cultural conservative Europeans” against “the cultural Marxist/multiculturalist elites and the ongoing Islamic invasion through Islamic demographic warfare against Europe.”

In one addition near the end Breivik names briskly the conclusion he has drawn from Farah’s biblical justification for Christian violence: “every military action against our enemies is considered self defence.” Apparently that includes the shooting of the 69 unarmed youths on Utoya island, whom Breivik saw as representatives of those enemies, the “multiculturalist elites.” “The Bible couldn't be clearer on the right, even the duty, we have as believers to self-defense,” wrote Farah. His admiring student Breivik cites this line word for word, with one exception: he replaced “we … believers” with “we … Christians.”

In the days since the attack and arrest, the media has been abuzz with reflections on whether or not Breivik can or should be called a “Christian.” Each argument depends upon some stated or implied criterion for what constitutes Christian identity: a form of “belief,” of personal piety or religious experience, of ethical comportment, of ritual practice, of theological commitments, of cultural identity, of ecclesial participation, of relationship to political orders. These arguments tell us as much or more about the commitments of the authors as they do about Breivik. So, for instance, one paragraph from his manifesto has been cited by some commentators to deny Breivik’s Christian identity because he admits that he and those like him “do not necessarily have a personal relationship with Jesus Christ and God.” But in the same context Breivik says, “We do however believe in Christianity as a cultural, social, identity and moral platform. This makes us Christian.”

He goes on to name the basis for this: “I believe that self defence is a central part of Christianity as documented in another part of this book” (he is referring to the section taken from Farah et al.). Another quote from article 3.80 which questions sola scriptura has allowed some Protestant columnists (as on christianapologetics.org) to place him outside Christianity, despite his having been baptized in the State Church of Norway/Lutheran Church at age 15, and his “assimilation policy” in article 3.10, which allows for Muslims to join the cause through Christian baptism. Those seeking to repudiate his Protestant credentials have also referred eagerly to article 3.139, where Breivik seems to claim a preference for the Catholic Church, albeit one that has a more militaristic bent than Pope Benedict XVI, who comes in for critique in the manifesto for being unlikely to launch a new crusade (article 3.148). Presumably for those authors a Roman Catholic is not really a Christian, so the problem is thereby resolved.

Breivik’s critique of the current pope also allows Catholics a nervous sigh of relief after the murderer gestured their way (as at catholicnewsagency.com). Ross Douthat of the New York Times tries to take the Christianity out of the equation, reducing Breivik to a political conservative or “right-winger” who has merely “nominal Christianity,” because Breivik states at one point in the manifesto, “regarding my personal relationship with God, I guess I’m not an excessively religious man.” Apparently the statement on the previous page, “I consider myself to be 100% Christian,” doesn’t count, because, according to Douthat, Breivik lacks “genuine religious fervor” (one wonders what Douthat would consider proper evidence of that to be).

One CNN reporter, Eliott C. McLaughlin, finds it easy to deem Breivik’s relationship to Christianity “paradoxical,” given “his claim to be a Christian while confessing to have disregarded the Bible’s least debatable commandment” (presumably, and astoundingly, McLaughlin is referring to the supremely debatable and debated fifth or sixth Christian commandment, “thou shalt not kill”). Marcus Buck, a Norwegian political scientist quoted on CNN, cited Breivik’s lack of “any insight into Christian theology,” but he gives no reasons why theological acumen would serve as an appropriate or workable criterion of his (or anyone else’s) religious identification.

That same CNN article cites Breivik’s quotation from Farah (the title of this column) among other passages from the lengthy manifesto and concludes that, “Experts on religion in Europe said those faith-infused views are likely peculiar to the suspected gunman and do not appear [to] reflect wider religious movement.” They do not realize that these statements are in fact not Breivik’s own compositions. In a supreme irony, Joseph Farah—one of the first to repudiate the label Christian for Breivik in the aftermath of the massacre—finds evidence in, among other things, the allegation that he did not prepare for his mission by a routine of “religious worship and study.” Farah apparently does not consider Breivik’s close and careful consultation with his own on-line Bible instruction about the Christian call to arms to constitute such.

From an analytical point of view, all these arguments are straining against the evident fact that Breivik is deeply and significantly a Christian, one who is speaking on behalf of a plan to restore Christendom—a concept that inextricably fuses religion, politics and culture—which he regards as the true heritage of Europe. He does so by reference to a selective reading of the Christian scriptures as well as the history of Christianity, particularly the medieval crusades against Muslims, in an online manifesto that features a crimson crusader cross on the cover page and on the fabricated military medals that adorn his chest in one of its final, haunting photographic images (p. 1513).

Republican PartyTerrorism

A Tea Party congressman denied that he was a terrorist because he did not commit acts of violence. True, but the Tea Party persuaded the Republican Party to hold our economy hostage to an economic crisis and held out for a deal that makes it virtually impossible to make serious dents into our massive unemployment. Why? Because government spending is vital to create jobs, and the negotiated deal will make that spending undoable. For discussion of those aspects of the deal, see an excellent column by Robert Reich here.

I suppose some Congressional Republicans are ignorant enough to believe their public statements about how to combat unemployment, but I believe they know what they are doing. They think their chances of winning are better if the economy does not recover. And they will be right if the public cannot recognize the need for short term government spending and long term cuts to address the deficit. The public will never understand this unless the President abandons his above it all stance and starts condemning the Republican from now until election day.

The Republicans talk as if Obama created the deficit with his spending. Unless the Republicans are suffering from amnesia, this too is a lie. Gary Hart puts it well in Esquire: "We fought two long wars without raising revenues — the dreaded "t" word. Even worse, we cut taxes while dramatically increasing military spending. We deregulated financial markets, and banks and investors manipulated the nation's economy into a catastrophe. These were conscious policy decisions. Then the baby boomers arrived on the social safety net's doorstep. And health-care costs skyrocketed." Most of this did not happen on Obama's watch and it was subsidized and approved with Republican votes. 

Truth will not emerge in the marketplace if Republicans are not called to account. We are not living in a time for compromise; we are living in a time for partisan rhetorical war. If the Republicans want a disfunctional government and have the power to bring it about, it is time to say that they are no better than terrorists.

 

The Ego, Vulnerability, & the Circumscription of Reason

 
 

The following passages are from John Cottingham’s, Philosophy and the Good Life: Reasons and the Passions in Greek, Cartesian and Psychoanalytic Ethics (Cambridge, UK: Cambridge University Press, 1998). I find them utterly persuasive on all counts and thus believe these propositions spell out at least one way we might take seriously the slogan that “the personal is political.” As such, they should be axiomatic to any Left-inspired emancipatory project. 

“The fact is that vulnerability—to pain, to loss, to fear, ultimately to extinction—is not simply a function of psychological or developmental difficulties, but is part of our very nature as human beings—one of the signs of existence [dukkha] as the Buddhists have it. And unless moral life can be lived in a compartmentalized way, in a way that ignores or dangerously blindfolds us to that vulnerability (and this would involve a sacrifice of our wholeness, our integrity), then we are going to need an askesis [‘spiritual exercises’ as found, for example, among the Stoics and monastic and mystical traditions] that enables us to come to terms with it.”

“Before we can begin on the project of seeing how we should live, we first have to embark on the task of trying to understand ourselves. That much, at least, is fully in accord with a long classical tradition stretching from the famous injunction at Delphi right down to Pope’s Essay on Man: “Know then thyself.” But what is new is the insistence that the process has to begin with an attempt to come to terms with the darker side of our nature—the side which is not revealed by simple introspection and rational weighing of ‘what on balance we most want,’ but which will be grasped only at the end of a long process of recovery, rehabilitating those parts of the self which are initially submerged beneath the level of ordinary everyday awareness.”

“The problem of mastering, or at least accommodating, the passions was seen in both Greek and in early modern ethics as absolutely central to philosophy’s goal of teaching us how to live. But the solutions offered by both of these earlier systems were defective in important respects, and…the defects only begin to be remedied with the development of the unconscious—the notion that important parts of the self are not fully transparent to the deliberations of reason.”

Cottingham turns, rightly I think, to psychoanalytic theory to transcend (aufheben) the Enlightenment trajectory (with Greek pedigree) of a purely ratiocentric philosophy and ethics, endeavoring “to uncover the seeds of an approach which comes to terms with the incapacity of controlling reason to settle the conditions for human well-being, while at the same time not abandoning the values of systematic analysis and rational reflection [which are, of course, intrinsic to psychoanalytic theory and practice].”  

For further reading, see here (this list has since been updated and I can send it along upon request).

Image: Freud’s psychoanalytic couch at the Freud Museum in London.

Addendum: As part of my reply to Chris Bertram’s comment, I’m including a short list of fairly sophisticated philosophical and psychological examinations of Freudian (and, importantly, post-Freudian) ideas. I also recommend one attempt to read more than a few of the titles I gathered together in the first three sections of the bibliography linked to above. 

• Benjamin, Jessica. The Bonds of Love: Psychoanalysis, Feminism, and the Problem of Domination. New York: Pantheon Books, 1988. 
• Burston, Daniel. The Legacy of Erich Fromm. Cambridge, MA: Harvard University Press, 1991.
• Cavell, Marcia. The Psychoanalytic Mind: From Freud to Philosophy. Cambridge, MA: Harvard University Press, 1993.
• Cavell, Marcia. Becoming a Subject: Reflections in Philosophy and Psychoanalysis. New York: Oxford University Press, 2006.
• Deigh, John. The Sources of Moral Agency: Essays in Moral Psychology and Freudian Theory. Cambridge, UK: Cambridge University Press, 1996.
• Dilman, Ilham. Freud and Human Nature. Oxford, England: Basil Blackwell, 1983.
• Dilman, Ilham. Freud and the Mind. Oxford, UK: Basil Blackwell, 1984.
• Edelson, Marshall. Hypothesis and Evidence in Psychoanalysis. Chicago, IL: University of Chicago Press, 1984. 
• Gardner, Sebastian. Irrationality and the Philosophy of Psychoanalysis. Cambridge, UK: Cambridge University Press, 1993.
• Hinshelwood, R.D. Clinical Klein: From Theory to Practice. New York: Basic Books,1994.
• Laplanche, Jean. New Foundations for Psychoanalysis. Cambridge, MA: Basil Blackwell, 1989.
• Lear, Jonathan. Love and Its Place in Nature: A Philosophical Interpretation of Freudian Psychoanalysis. New York: Farrar, Straus & Giroux, 1990.
• Lear, Jonathan. Open Minded: Working Out the Logic of the Soul. Cambridge, MA: Harvard University Press, 1998.
• Lear, Jonathan. Happiness, Death, and the Remainder of Life. Cambridge, MA: Harvard University Press, 2000.
• Lear, Jonathan. Therapeutic Action: An Earnest Plea for Irony. New York: Other Press, 2003.
• Lear, Jonathan. Freud. New York: Routledge, 2005.
• Levine, Michael P., ed. The Analytic Freud: Philosophy and Psychoanalysis. London: Routledge, 2000.
• Levy, Donald. Freud Among the Philosophers: The Psychoanalytic Unconscious and Its Philosophical Critics. New Haven, CT: Yale University Press, 1996.
• Modell, Arnold H. Other Times, Other Realities: Toward a Theory of Psychoanalytic Treatment. Cambridge, MA: Harvard University Press, 1990.
• O’Neill, John, ed. Freud and the Passions. University Park, PA: Pennsylvania State University Press, 2004.
• Robinson, Paul. Freud and His Critics. Berkeley, CA: University of California Press, 1993.
• Rudnytsky, Peter L. Freud and Oedipus. New York: Columbia University Press, 1987.
• Sayers, Janet. Freud’s Art: Psychoanalysis Retold. New York: Routledge, 2007.
• Schafer, Roy. Retelling a Life: Narration and Dialogue in Psychoanalysis. New York: Basic Books, 1992.
• Tauber, Alfred I. Freud, the Reluctant Philosopher. Princeton, NJ: Princeton University Press, 2010.
• Wallerstein, Robert S. The Talking Cures: The Psychoanalyses and the Psychotherapies. New Haven, CT: Yale University Press, 1995.
• Wallwork, Ernest. Psychoanalysis and Ethics. New Haven, CT: Yale University Press, 1991.
• Whitebrook, Joel. Perversion and Utopia: A Study in Psychoanalysis and Critical Theory. Cambridge, MA: MIT Press, 1995.
• Wollheim, Richard. The Mind and Its Depths. Cambridge, MA: Harvard University Press, 1993.
• Wolheim, Richard and James Hopkins, eds. Philosophical Essays on Freud. Cambridge,  UK: Cambridge University Press, 1982.

The Ninth Circuit and Religious Discrimination by Religious Groups

Yesterday the United States Court of Appeals for the Ninth Circuit upheld the non-discrimination policy of San Diego State University which denies official campus status to any group that “discriminates on the basis of race, sex, color, age, religion, national origin, marital status, sexual orientation, physical or mental handicap, ancestry, or medical condition except as explicitly exempted under federal law.” From my perspective, this policy is laudable on its face. Groups with official status receive funding among other benefits and a state university need not subsidize discrimination.

The problem with yesterday’s decision in Alpha Delta Chi-Delta Chapter v. Reed is that the Court upheld the application of this policy to a religious organization that discriminated in its membership on the basis of religion. At the same time, San Diego permits secular groups to confine their membership to those who agree with their ideology such as the Republicans, the Democrats, and the  Socialists.  Even the Hispanic Business Students Association confines membership to those who support its goals and objectives. These groups are permitted to exclude those who do not support their ideology because their exclusions are not based on any of the forbidden grounds such as race or religion.

To be sure, it is ordinarily problematic for an organization to discriminate on the basis of religion. If the Sierra Club were to exclude Catholics or Jews or Muslims, it would be an outrage. But there is nothing outrageous about a religious organization confining its membership to those who agree with its ideology any more than it is problematic for the Young Democrats to do so.

In response to this, the Ninth Circuit argues that the liberty of the religious organization is not denied. It may still participate on campus without official recognition. But the problem is the inequality in application of the policy. In response to this point, the Circuit says that this inequality was not part of the purpose of the policy. Perhaps so, but that is beside the point. The effect of applying the policy in this way should have been regarded as constitutionally unreasonable.

Without question, this issue is on its way to the Supreme Court. Its fate there is uncertain. The closest case to it is CLS v. Martinez. There a divided Court upheld a policy of the Hastings Law School giving official status only to those student groups that were open to all students. In that context, the inequality I have been discussing did not exist. The Ninth Circuit recognized that its ruling was not dictated by Martinez.  I predict that the Ninth Circuit will be reversed 5-4, but I am not prepared to back this shaky prediction with a bet of any kind.  Nonetheless, Roberts, C.J., Scalia, Thomas, and Alto, JJ., are certain to vote for reversal if the case gets there. No one in Martinez joined Stevens, J., concurring opinion in which he approved of using a non-discrimination policy involving religion against a religious group. Kennedy is a possible vote to join his usual bloc of voters and one of the liberals could join as well (though to say the least liberals are divided on this issue).

 

Obama, the Independents, and Unemployment

There are good grounds to believe that President Obama's strategy of getting elected by appealing to independents is folly. In an eye-opening article in the New Republic today,  Ruy Teixera argues that the majority of independents are not independent. Sixty-eight per cent of independents lean Republican or Democrat (38%-32% respectively), and they vote the way they lean. The remaining 32% have very small turnout (they were just 7% of voters). Even more important, independents are more concerned about the American job situation than the debt situation by a margin of 2/1. This may account for the free fall of Obama's reelection statistics among independents in the last few months.So Obama has succeeded in alienting his base while failing among independents at the same time.

If Obama had been speaking about unemployment for the past six months and proposing programs to address it,  he would have done more to appeal to his base and independents, and he would have been doing the right thing. He now proposes to address unemployment with tax cuts. In so doing, he refuses to take on the Republican fiction that government spending to combat unemployment is anathema. He refuses to attack the abstraction of "spending" and replace it with necessary infrastructure for transportation and the environment, with teachers and education, with aid for families with housing needs. To be sure, Obama has been assisted by a Republican party whose lunatic tail wags an already diseased body. But Obama should be building a larger base by leading a battle against employment and giving more than lip service to the maxim that everyone must pay. Incredibly, in this age of impoverished memories, he still has time.

The Air Force, Nuclear Missles, Just War Doctrine, and the Establishment Clause

The internet is alive with stories that the Air Force in its mandatory training sessions has been teaching those who would launch missles about the "right" Christian position on the morality of doing so. In doing so, the Air Force has been mixing the just war doctrine with passages from Revelation and the Old Testament. Let us pass over the assumption that the just war doctrine is proper Christian doctrine (an assumption not obvious when one reads the Sermon on the Mount), and let us note that the possible existence of a "just war" does not easily justify nuclear war (with its horrendous capacity for civilian casualities). Indeed, many Christian ethicists doubt that the conditions for a just war do not exist under modern conditions. It is hard, for example, under just war doctrine to justify our presence in Iraq or Afghanistan particular given the impact of those wars on innocent civilians. Thus many Catholc Bishops, for example, have condemned modern warfare under such conditions. Whatever the Christian ethics of modern conventional warfare, I would think one would have to search far and wide to find a Christian theologian who would tell an Air Force recruit that Christ sanctions the launching of nuclear missles. 

From another important vantage, this is all beside the point. Just what was the Air Force thinking when it required soldiers (of pluralistic religious or non-religious backgrounds) to submit to its version of Christian exegesis? Apart from the Free Exercise issues associated with requiring soldiers to attend compulsory religious lecture, if the Establishment Clause has a central meaning, it must be that the government cannot take official theological positions. As this case demonstrates, the government is incompetent to do so.

Mr. Scold-In-Chief

President Obama has urged members of both parties to vote for the agreement and “end the crisis Washington imposed on the rest of America.”  Washington imposed this on America? It ought to be obvious to everyone that the Republicans imposed this crisis on America by holding the debt ceiling hostage to its demands. Why would the leader of the Democratic Party blame both parties? Admittedly, if Obama wants to bring the Republican legislators into the deal, it is not the time to blame the Republicans for the crisis. At the same time, however, it is outrageous for the leader of the Democratic Party to suggest that the Democrats were culpable in this fiasco. Obama obviously did not need to say this.  but it was surely deliberate. It seems calculated to establish himself as Mr. Scold-In-Chief, Mr. Above-It-All. I doubt this is good electoral politics for the President. It certainly is not good politics for the Democratic Party for its leader not only to join the Republican Party in making Washington the center of what is wrong in the country, but also to tar the Democratic legislators in the same selfish rhetorical thrust.