ReligiousLeftLaw.com

Natural Law “externalism” v. Law as “moral aspiration”

Here is a link to a revised paper (from 2011): “Natural Law ‘Externalism’ v. Law as Moral Aspiration.” This paper makes an argument against Thom Brooks’ characterization of the natural law tradition’s concept of justice as “external” to the law, in contrast with Hegel’s peculiar “internalist” conception of natural law.  I’m not so much interested in Brooks’ interpretation of Hegel on this score as his rendering of the concept and conceptions of justice and law as found generally in natural law traditions and formulations.

“As it turns out, Marx himself, at least in his early years, recognized the relationship between the rule of law and substantive equality. In 1842, Marx criticized the Prussian censorship laws in rule of law terms, claiming that such ‘laws without objective norms are laws of terrorism, such as those created by Robespierre’ and ‘positive sanctions of lawlessness.’ Going on, he criticizes the law as ‘an insult to the honor of the citizen’ and ‘a mockery directed against my existence,’ in virtue of the fact that it is ‘not a law of the state for the citizenry, but a law of a party against another party’ which ‘cancels the equality of citizens before the law.’”

“One law for the lion and for the ox is indeed oppression, if that law requires everyone to eat meat or to grow a mane. And in a world where some people have a lot, and others are destitute, treating people how equals ought to be treated means taking from the former and giving to the latter. As it turns out, this is the correct interpretation not just of the ideal of distributive justice, but of the proposition that all are to be equal under the law. And this is a valuable discovery independent of distributive justice theory.”

“The rule of law is both an unqualified human good and a tool in the fight against social injustice.”—Paul Gowder

These quotes from a recent paper by Paul Gowder, “Equal Law in an Unequal World,” while not about natural law theory proper, suggest if not capture that type of natural law reasoning about the “moral ideal of the rule of law” and justice found in the natural law tradition and thus help illustrate how notions of justice and morality are not, pace Thom Brooks, “extrinsic” to its conception of the rule of law.

Please note: The SSRN link I provide to Brooks’ paper in my essay no longer allows its download (only the abstract), apparently because it is now part of a collection of essays in a volume edited by Brooks: Hegel’s Philosophy of Right (Wiley-Blackwell, 2012): 167-179. 

Poetry & Islam: An Introduction

Here is a link to my essay, “Poetry & Islam: An Introduction,” which was posted in two parts here several years ago and an earlier and shorter draft of which and published in CrossCurrents (March 2011). Clarification: It seems I was mistaken! This is virtually identical (I edited a few things) to the published version, which I had not looked at for some time. 

The Golden Rule: introduction and formulations

Here is a slightly revised piece on the Golden Rule that was first posted here in 2011.  

Imagination in Indian Philosophy

There’s a wonderful post on the role of imagination in perception in Indian philosophy by Douglas Berger at the Indian Philosophy Blog.

Not mentioned in the post and subsequent discussion (as it’s confined to imagination vis-à-vis perception in philosophy) is an intriguing fact: within the four major schools of Sanskrit poetics (Alaṅkāra, Rīti, Dhvani, and Rasa), according to V.K. Chari, imagination (pratibhā, ‘poetic genius’) is not used in the definition of poetry, “although nearly all critics paid homage to it.” Indeed, pratibhā is simply cited as “only one of the causes of poetry, together with training (śikṣā) and understanding of the world (vyutpatti).”* Chari himself thinks that what others see here as a failure to do justice to the intuitive or imaginative parts of poetic creation is rather an analytic virtue of the scholastic approach of Sanskrit critics, for imagination “is at best a dubious concept, and its usefulness for criticism has not been proved.” The second half of the coordinating conjunction is likely true, although I disagree with the proposition that imagination is “at best a dubious concept.”

* Sanskrit manuals, writes Chari, make a firm distinction between “the cause of poetic creation (kāvya-hetu), the ‘fruits’ accruing from it (kāvya-phala) or the purpose served by it (kāvya-prayojana), and the nature of poetry (kāvya-lakṣaṇa).” 

So Who's Right in the Dust Up Over Graduation Speakers?

This graduation season was marked by criticism of the selection of speakers at many colleges. This is not unusual. What seemed more pronounced in this cycle was the ferocity of the response. Most shocking to me was the response of Stephen Carter, a Yale Law professor, who used a hypothetical graduation podium to present a bombastic, sarcastic diatribe in which he berated the graduates for censorship, lack of reflection, and intolerance. http://www.bloombergview.com/articles/2014-05-15/dear-class-of-2014-thanks-for-not-disinviting-me. Similarly, Damon Linker complains of the lazy moralism of academia and regards the objections to the selection of Condoleezza Rice on the ground that she approved of torture as “academic moral grandstanding.” http://theweek.com/article/index/261515/the-lazy-moralism-of-liberal-college-politics. Whatever the merits of the policies embraced by Rice, Linker opines that speakers like her should not be “excommunicated, ignored, or banished from public life” (as if criticism of her selection banished her from public life).

One of the common themes of these essays is that the protests against Rice and others betrays the university’s commitment to free and open debate.

I leave to the side the more bizarre of these complaints. Criticism of the selection of graduation speakers is itself free speech, not censorship. The complaint that protests about speakers like Rice lack reflection or involve moral grandstanding say more about Carter and Linker than they do about those they protest. Characterizing those who object to the honoring of a supporter of torture through the invitation of speaking at a graduation as involved in moral grandstanding leaves one to wonder whether the moral compass of Carter and Linker took the day off.

Most problematic is the assumption of Carter and Linker that graduation speeches are no different from the day to day open debate that flourishes in a university. A graduation is a day of celebration for the graduates. It is a day for looking back at the past and being inspired for the future. It demands so far as possible the presence of a speaker that all can embrace.

You might think from this that I do not think partisan politicians should be invited to speak at graduations, and you would be exactly right. If they are invited, they should be cautioned to be sensitive to the pluralism of views held by the graduates.

I am proud of the fact that I have been twice selected by students to speak at law school graduations. I am well aware that my views of law and politics are well to the left of the graduates I would ever address. On those two occasions, it did not occur to me to press my controversial views on the graduates (though it seemed inappropriate to hide those views from my students during classroom debates and discussions).

Graduation day is not a day for political debate. The graduates can be called upon to reflect on their past and future without the selection of polarizing speakers.  The selection of high profile politicians may draw headlines for universities; sometimes those selections curry political favor; they may please many of the graduates; but they do not honor the diversity of the students who graduate.    

     

Malcolm X (May 19, 1925 – February 21, 1965)

“Education is the passport to the future, for tomorrow belongs to those who prepare for it today.”

“A man who stands for nothing will fall for anything.”

“I’m for truth, no matter who tells it. I’m for justice, no matter who it’s for or against.”

“I am for violence if non-violence means we continue postponing a solution to the American black man’s problem just to avoid violence.”

“The future belongs to those who prepare for it today.”

“Despite my firm convictions, I have always been a man who tries to face facts, and to accept the reality of life as new experience and new knowledge unfolds. I have always kept an open mind, a flexibility that must go hand in hand with every form of the intelligent search for truth.”

“Envy blinds men and makes it impossible for them to think clearly.”

“I am not a racist. I am against every form of racism and segregation, every form of discrimination. I believe in human beings, and that all human beings should be respected as such, regardless of their color.”

“If violence is wrong in America, violence is wrong abroad. If it is wrong to be violent defending black women and black children and black babies and black men, then it is wrong for America to draft us, and make us violent abroad in defense of her. And if it is right for America to draft us, and teach us how to be violent in defense of her, then it is right for you and me to do whatever is necessary to defend our own people right here in this country.”

“I don’t favor violence. If we could bring about recognition and respect of our people by peaceful means, well and good. Everybody would like to reach his objectives peacefully. But I’m also a realist. The only people in this country who are asked to be nonviolent are black people.”

—Malcolm X (May 19, 1925 – February 21, 1965), born Malcolm Little and also known as El-Hajj Malik El-Shabazz

Suggested Reading:

• Cone, James. Martin & Malcolm & America: A Dream or a Nightmare? Maryknoll, New York: Orbis Books, 1992.
• Dawson, Michael C. Blacks In and Out of the Left. Cambridge, MA: Harvard University Press, 2013.
• Lipsitz, George. How Racism Takes Place. Philadelphia, PA: Temple University Press, 2011.
• Marable, Manning. Malcolm X: A Life of Revolution. New York: Viking, 2011.
• Shelby, Tommie. We Who Are Dark: The Philosophical Foundations of Black Solidarity. Cambridge, MA: Belknap Press of Harvard University Press, 2005.
• Wolfenstein, Eugene Victor. The Victims of Democracy: Malcolm X and the Black Revolution. London: Free Association Books, 1989.

 

Town of Greece

A local paper asked me to write an Op-Ed on the Town of Greece prayer case, but -- with grading and other end-of-semester business in the way -- I got it done too late for them to publish.  So here it is:

 

We live in fractious times. Politics, law, religion, have all turned into bitter battlegrounds. Combine the three and all hell, so to speak, breaks loose.

Reaction to the Supreme Court’s recent decision in Town of Greece v. Galloway is a good example. In that case, the Court again upheld the constitutionality of official prayers at the start of legislative sessions, explicitly including (as had not been clear before) meetings of town councils. And it rejected the argument that the specific pattern of prayer in Greece, New York, was too narrow and sectarian. Partisans on one side cheered the Court for upholding tradition and national reverence. And partisans on the other side accused it of tolerating Christian hegemony. (Full disclosure: I clerked for Justice William Brennan, Jr. in 1983, when he dissented from the original decision in Marsh v. Chambers allowing official invocations in state legislatures.)

My take on the problem is different. The Court was wrong to allow official legislative prayer in the first place. But having allowed the practice, it was right not to try to force such prayer into a narrow, inoffensive, channel. Let me explain.

What did Jesus say...and do? Or: semantic originalism's supra-legal and transformative politics as found in the living Gospel

Gospel verses for those Christians obsessed with public prayer in government fora:

“And when you pray, you must not be like the hypocrites. For they love to stand and pray in the synagogues and at the street corners, that they may be seen by others. Truly, I say to you, they have received their reward.”—Matthew 6:5

“But when you pray, go into your room and shut the door and pray to your Father who is in secret. And your Father who sees in secret will reward you.”—Matthew 6:6

“And rising very early in the morning, while it was still dark, he departed and went out to a desolate place, and there he prayed.”—Mark 1:35

“But he would withdraw to desolate places and pray.”—Luke 5:16

 

Images: “Christ in the Wilderness,” by the British artist, Stanley Spencer (1891-1959)  

Comments about the Recent Prayer Case

The recent prayer case, Town of Greece v. Galloway, merits the abundant discussion it has received. I will settle for a few comments.

First, legislative prayer like “In God We Trust” on the coins and currency is an excellent example of how the role of history in constitutional interpretation causes our Constitution to fall short of the ideal. Prayers to the Almighty and the motto on the coins and currency discriminate against Hindus, Buddhists, atheists and agnostics. But the history and the continuing tradition supports the constitutionality of these practices. I wish we lived in a country with greater devotion to the principle of separating church from state, but we do not.

Second, although the motto of In God We Trust is constitutional, I think it plain that the motto In Christ We Trustwould not be constitutional because it is even less tolerant of our diversity. Although Town of Greece is a horror show, I do not think it changes this understanding. The Town of Greece allowed ministers from the town to lead its legislative proceedings in prayer, and those prayers were not only overwhelmingly Christian, but also quite frequently prayers that would divide one Christian from another. Justice Kennedy put his head in the sand and pretended that the Town of Greece by allowing for occasional prayers by non-Christians (after the law suit was filed – and then by less than a handful) was formally neutral and was, therefore, not endorsing Christianity.  I suppose it is clear that if members of the public in addressing the legislature expressed their individual religious views, their expressions would not count as governmental establishment of religion. But a legislature needs to be held responsible for its actions. When government chooses to have ministers start its sessions with full knowledge of the religious content week after week after week, it is fatuous to suggest that government is not significantly involved in promulgating a sectarian religious message. This conclusion is fortified by the fact that the ministers could have been advised to give non-sectarian prayers. No case by case scrutiny of the prayers would have been necessary. The general admonition alone could have  severed the link between the government’s invitation and any sectarian messages.

Third, even if Justice Kennedy is given a pass on his insensitive use of formal neutrality, his claim that the primary audience for the prayers was the legislature is downright disingenuous. As Justice Kagan observed, the prayers were delivered to the public with the ministers’ backs to the legislature! When Justice’s prevaricate about the facts, they manifest special disregard for the rule of law. They recognize that if the prayers are directed to the audience, the pressure to participate correspondingly grows.

Fourth, although many commentators have placed emphasis on the coercive effects of the prayers, I would argue that it is bad enough that our Constitution tolerates prayers to the Almighty (politics and religion are a bad mix, particularly because government tends to compromise religion), it is even worse for Our Constitution to tolerate government endorsement of more specific religious views. The more specific government endorsements are allowed to be, the greater the incursion upon religious equality. Moreover, government is not adept at theology. Constitutional toleration for government use of religion should be as narrow as possible.

Finally, Town of Greece is part and parcel of a Court majority that supports the rich (consider its business and political finance decisions) and seems to do its level best to maintain the authority of often unjust hierarchies (consider its dealings, not only with race, but also its generalized support for police authority and its upholding of the suppression of the free speech of students, employees, and prisoners). The pattern of too many Court decisions is susceptible to the reading that white male conservative Christian rich guys are the real Americans, Americans who deserve special judicial manipulation and protection. The Court is holding on to an old hierarchy. Its days are numbered. 

Free Speech Interview of Steve Shiffrin by Ron Collins

Ron Collins threw some tough questions my way in an interview about my First Amendment views. Here's the link. http://www.concurringopinions.com/archives/2014/05/fac-4-first-amendment-conversations-steve-shiffrin-the-dissenter-at-the-first-amendment-table.html

The Imperialist and Scientistic Pretensions…or The Secret and Not-So-Secret Sins, of Economics

In his Salon review of Piketty’s Capital in the Twenty-First Century (Belknap Press of Harvard University Press, 2014), Thomas Frank writes:

“Academic economics, especially in the United States, has for decades been gripped by a kind of professional pretentiousness that is close to pathological. From time to time its great minds have grown so impressed by their own didactic awesomeness that they celebrate economics as ‘the imperial science’— ‘imperial’ not merely because economics is the logic of globalization but because its math-driven might is supposedly capable of defeating and colonizing every other branch of the social sciences. Economists, the myth goes, make better historians, better sociologists, better anthropologists than people who are actually trained in those disciplines. One believable but possibly apocryphal tale I heard as a graduate student in the ’90s was that economists at a prestigious Midwestern university had actually taken to wearing white lab coats—because they supposedly were the real scientific deal, unlike their colleagues in all those soft disciplines.

Piketty blasts it all to hell. His fellow economists may have mastered the art of spinning abstract mathematical fantasies, he acknowledges, but they have forgotten that measuring the real world comes first. In the book’s Introduction this man who is now the most famous economist in the world accuses his professional colleagues of a ‘childish passion for mathematics and for purely theoretical and often highly ideological speculation’; he laughs at ‘their absurd claim to greater scientific legitimacy, despite the fact that they know almost nothing about anything.’ In a shocking reversal, he calls on the imperial legions of economic pseudo-science to lay down their arms, to ‘avail ourselves of the methods of historians, sociologists, and political scientists’; the six-hundred-page book that follows, Piketty declares, is to be ‘as much a work of history as of economics.’”

 

I’d like to point out to those (understandably) not familiar with, let alone failing to have kept abreast of, the academic economics literature* of, say, the last three decades or so, that this critique of the profession by Piketty is hardly new. In fact, it’s been made with eloquence, passion, and persistence—and in some circles at least, with devastating effect—by Deirdre (formerly Donald) McCloskey (who is not at all of Leftist suasion), beginning with The Rhetoric of Economics (University of Wisconsin Press, 1985), continuing through Knowledge and Persuasion in Economics (Cambridge University Press, 1994), and again, in a little gem (58 pgs.!), The Secret Sins of Economics (Prickly Paradigm Press, 2002). Much of what Piketty is saying here sounds virtually word-for-word what she has been saying for several decades now. In the latter book, for instance, she laments the appalling extent and degree of institutional and historical ignorance of her better-known colleagues in the profession, as well as their corresponding “cultural barbarism,” dated and simplistic (because crudely positivist) conceptions of science, and “high school” ethics, in addition to otherworldly mathematical formalism.

McCloskey has courageously and cleverly attempted to persuade her colleagues in economics to rely far less on mathematical formalism and a “scientistic style,” and far more on the “whole rhetorical tetrad—the facts, logics, metaphors, and stories necessary” [….] that can render economics “more rational and more reasonable,” not to mention accessible to a literate public. As she notes, “[i]t would of course be idiotic to object to the mere existence of mathematics in economics,” and indeed, mathematics in economics, used properly if not modestly, is a “virtue,” but “[l]ike all virtues it can be carried too far…, becoming the Devil’s work, sin.” Pure theory and econometrics, for instance, have too often been purchased at the expense of old-fashioned empiricism and intelligent inquiry into and observation of the real world (hence the need for journals like Real World Economics Review). Worship at the altar of qualitative theorems and statistical significance is otherworldly, consciously or otherwise designed to have its practitioners don the priestly mantle of “hard science” (as exemplified by physics). In McCloskey’s words:

“It is not difficult to explain to outsiders what is so dramatically, insanely, sinfully wrong with the two leading methods in high-level economics, qualitative theorems and statistical significance. It is very difficult to explain it to insiders, because the insiders cannot believe that methods in which they have been elaborately trained and which are used by people they admire most are simply unscientific nonsense, having literally nothing to do with whatever actual scientific contribution (and I repeat, it is considerable) that economics makes to the understanding of society. So they simply can’t grasp arguments that are plain to people not socialized in economics.”

Related critiques have been made by others, including S.M. Amadae in Rationalizing Capitalist Democracy: The Cold War Origins of Rational Choice Liberalism (University of Chicago Press, 2003), and in several articles and books by Philip Mirowski. Two works by Christian Arnsperger, Critical Political Economy… (Routledge, 2008), and Full-Spectrum Economics: Toward an inclusive and emancipatory social science (Routledge, 2010), proffer a programmatic focus on transforming the discipline from within and without, serving up a plethora of provocative if not utopian possibilities for fundamentally altering the character of the profession. I think it’s also useful to examine writings suggestive of “political economy” in the broadest sense—like Gandhi’s—that are clearly well outside the parameters of neoclassical economics: see, for example, B.N. Ghosh’s Gandhian Political Economy (Ashgate, 2007), and Beyond Gandhian Economics: Towards a Creative Deconstruction (Sage Publications, 2012).

* And without implying I’ve come anywhere close to mastering same.

 

Posthumous Justice for Lawyers

This undated family photo shows Hong Yen Chang. Chang was an Ivy League graduate thought to be the first Chinese-born, United States-trained lawyer when the California Supreme Court denied his application to practice law in a 1890 decision. Now, students at a Northern California law school hope to persuade the current court to reverse the 124-year-old decision that is still studied in law schools. (AP Photo/Chang Family)

Under the heading of “better late than never,” or “posthumous justice,” is this news story from the UC Davis School of Law and the Asian Pacific American Law Students Association (APALSA). [h/t, John Steele at LEF] As we learn below, while there is no California precedent for what this group of students is seeking, in Washington and Pennsylvania a symbolic victory over the effects of discriminatory legislation was achieved  when applicants likewise excluded from their respective state bars were posthumously admitted. After the story of Hong Yen Chang I’ll share an analogous case of posthumous symbolic justice from South Africa. However, the South African case does not involve a denial of the opportunity to practice law (Chang himself was admitted to the New York State bar before being denied the right to gain a license to practice after moving to California), but rather a scenario in which activist lawyers (often communists) disbarred or struck from the roll of attorneys and advocates while fighting apartheid, were later (in the post-apartheid era) reinstated to the bar.

More than a century after a New York lawyer was denied the opportunity to practice law in California because of state laws that barred Chinese immigrants from most careers and opportunities, UC Davis law students are seeking his posthumous admission to the California State Bar.

The students in the UC Davis School of Law Asian Pacific American Law Students Association (APALSA) are asking the State Bar of California, and eventually the California Supreme Court, to admit Hong Yen Chang, who was denied a license to practice law in California in 1890.

Chang attended Yale as part of the Chinese Educational Mission, a pioneering program initiated by the Chinese government. He then left the United States and later returned on his own to study law. He earned a degree from Columbia Law School in 1886 and sat for the New York bar exam by special act of the legislature. When he was admitted to the New York state bar, The New York Times reported that Chang was the first Chinese immigrant admitted to any bar in the United States. In 1890, he came to California with the intention of serving San Francisco’s Chinese community as an attorney.

At that time, the federal Chinese Exclusion Act banned Chinese immigrants from naturalizing as citizens, and a California law prohibited noncitizens from practicing law in the state. Taken together, these laws made it impossible for people of Chinese descent to earn law licenses in the state. Chang petitioned the California Supreme Court, but was denied admission.

He went on to a distinguished career in banking and diplomacy, but his story was not forgotten. Now, the students are seeking a symbolic victory on behalf of Chang and others who suffered as a result of laws that discriminated against the Chinese.

‘Admitting Mr. Chang would be a powerful symbol of our state’s repudiation of laws that singled out Chinese immigrants for discrimination,’ said Gabriel ‘Jack’ Chin, a professor at UC Davis School of Law and APALSA’s faculty adviser on the project. ‘At the time Chang was excluded from the practice of law in California, discrimination against Chinese persons was widespread. Congress prohibited all Chinese immigration. Even the California Constitution dedicated an entire article to restricting the rights of Chinese residents.’

The UC Davis School of Law California Supreme Court Clinic is representing APALSA in the case. It has formally requested the State Bar to support the project and will file a petition with the California Supreme Court seeking Chang’s admission this semester. The clinic, the first and only law school clinic of its kind, represents parties and amici in a wide range of both civil and criminal matters pending before the California Supreme Court.

Other states have posthumously admitted applicants who were excluded from their respective bars based on similar discriminatory laws. In 2001, the Washington Supreme Court admitted Takuji Yamashita, a Japanese immigrant who had been refused admission to the profession in 1902. And in 2010, the Pennsylvania Supreme Court posthumously admitted George B. Vashon, an African American who had been denied admission in 1847 because of race. 

Chang’s descendants remain in the San Francisco Bay Area, including grandniece Rachelle Chong, the first Asian American to serve as a commissioner of the Federal Communications Commission and of the California Public Utilities Commission. ‘In my generation, our family is extremely fortunate to have three lawyers admitted to the California State Bar: my cousins Suzanne Ah Tye, Kirk Ah Tye, and myself,’ said Chong. ‘It would be fitting and right to have my granduncle’s exclusion reversed by the California Supreme Court to ensure that justice, albeit late, is done. Our family is honored that the UC Davis APALSA students have taken up the issue of righting a terrible wrong.’

‘From its inception more than 40 years ago, UC Davis School of Law has been dedicated to the ideals of social justice and equality espoused by Dr. Martin Luther King Jr., for whom our law school building is named,’ said Dean Kevin R. Johnson. ‘This effort by our students and faculty to admit Hong Yen Chang to the California State Bar stands strongly within that tradition and is deserving of support.’

During the struggle against apartheid in South Africa, lawyers were found in prominent activist and leadership roles, both in and outside the courtroom. Their political activism was often “illegal,” although the ostensible criminal behavior occurred on behalf of democratic rights and social justice. In fact, the role of law and lawyers under apartheid, during the transitional period, and with the emergence of the constitution of the new democratic State, is worthy of further and close examination, building upon such pioneering studies as Richard L. Abel’s Politics by Other Means: Law in the Struggle Against Apartheid (Routledge, 1995), Heinz Klug’s Constituting Democracy: Law, Globalism and South Africa’s Political Reconstruction  (Cambridge University Press, 2000), and Stephen Clingman’s, Bram Fischer: Afrikaner Revolutionary  (University of Massachusetts Press, 1998).

While readers may know that Nelson Mandela and Oliver Tambo were prominent lawyers, there were more than a few others, including Bram Fischer, Joe Slovo, Lewis Baker, Albert “Albie” Louis Sachs  (in 1994, appointed to the Constitutional Court of South Africa), and  Shun Chetty, the first three also members of the South African Communist Party  (SACP). In fact, most of these lawyers (including, arguably but I suspect correctly, Mandela) were also communists, and thus their appreciation of the democratic rule of law and later commitment to Liberal constitutionalism serves to counter common assumptions and shibboleths about communists and their putative historic and universal disdain for, or failure to appreciate the true nature of, both democracy and Liberal constitutionalism. Mention should also be made of a handful of South African government jurists during the rule of apartheid, most notably South Africa’s former judge, Richard J. Goldstone.*

Following the 1994 elections in South Africa, a “Restoration of Enrolment of Certain Legal Practitioners Bill” had been in the works, aimed at figures like Bram Fischer, Shun Chetty and Lewis Baker who were disbarred or struck off the roll of attorneys for various reasons that arose out of their activist political opposition to apartheid. On October 28, 2002, the Reinstatement of  Enrolment of Certain Deceased Legal Practitioners Act was passed into law by the Parliament and later signed by the President. The Bill reads as follows:

*   *   * To provide for the reinstatement of the enrolment of certain deceased legal practitioners who were struck off the roll of advocates or attorneys as a result of their opposition to the previous political dispensation of apartheid or their assistance to persons who were opposed to the said apartheid dispensation; and to provide for matters connected therewith.

PREAMBLE

WHEREAS  it is appropriate to honour the memory of those legal practitioners who made a contribution to the opposition to the previous political dispensation of apartheid, or who assisted persons who were so opposed, and who were struck off the roll on account of such opposition or assistance;

AND IN ORDER TO redress the injustices of the past by restoring the professional status of those legal practitioners who were so removed during the apartheid dispensation,

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:

Reinstatement on roll of advocates or attorneys

1. (1)Despite the provisions of the Admission of Advocates Act, 1964 (Act No. 74 of 1964), and the Attorneys Act, 1979 (Act No. 53  of 1979), the name of any deceased person who was removed from the roll of advocates or attorneys prior to 27 April 1994, may, upon application brought by a member of such deceased person’s family or, after consultation with the deceased person’s family, by (a)the General Council of  the Bar of South Africa; (b)the Bar Council concerned; (c)the Society of Advocates concerned; (d)the Law Society of South Africa; (e)the law society concerned; or (f)any other interested person, to any High court, be reinstated to the roll of advocates or attorneys, as the case may be, if the court is satisfied that the conduct that led to that person’s name being removed from the roll in question was directly related to that person’s opposition to the previous political dispensation of apartheid and  to bringing about political or constitutional change in the Republic, or to assisting persons who were likewise opposed to the said apartheid dispensation.

(2) If a High Court orders that the name of a person be reinstated as contemplated in subsection (1)-(a)to the roll of advocates, the registrar of the Court must forthwith forward a certified copy of that order to the Director-General: Justice and Constitutional Development, who must enter a reference to that order opposite the name of the person in question; or (b)to the roll of attorneys, the registrar of the Courtmust enter a reference to that order opposite the name of the person in question in the registers kept by him or her for that purpose and forward certified copies of that order to the registrars of the other High Courts and the registrars of deeds appointed in terms of the Deeds Registries Act, 1937 (Act No. 47 of 1937), who, in turn, must enter a reference to that order opposite the name of the person in question in the registers kept by them for that purpose.

Names of reinstated persons to be submitted to Parliament

2. The Cabinet member responsible for the administration of justice must cause the name of any person who was reinstated to the roll of advocates or attorneys in terms of section 1 to be submitted to Parliament.

3. This Act is called the Reinstatement of Enrolment of Certain Deceased Legal Practitioners Act, 2002.” *   *   *

Bram Fischer

Bram Fischer,  a remarkable (communist) anti-apartheid activist and lawyer, was in 2003 the first South African ever to be posthumously reinstated to the bar. Both Lewis Baker and Shun Chetty were reinstated to the roll of attorneys by the Pretoria High Court, the former in September 2005, and the latter, September 2006. In a future post I will discuss the life and work of these and other activist (or ‘cause’) lawyers in the struggle against apartheid in South African history.

* As it says in the Wikipedia entry on Goldstone, “He was one of several liberal judges who issued key rulings that undermined apartheid from within the system by tempering the worst effects of the country's racial laws. Among other important rulings, Goldstone made the Group Areas Act – under which non-whites were banned from living in ‘whites only’ areas – virtually unworkable by restricting evictions. As a result, prosecutions under the act virtually ceased.

During the transition from apartheid to multiracial democracy in the early 1990s, he headed the influential Goldstone Commission investigations into political violence in South Africa between 1991 and 1994. Goldstone’s work enabled multi-party negotiations to remain on course despite repeated outbreaks of violence, and his willingness to criticise all sides led to him being dubbed ‘perhaps the most trusted man, certainly the most trusted member of the white establishment’ in South Africa. He was credited with playing an indispensable role in the transition and became a well-known public figure in South Africa, attracting widespread international support and interest.”

Although the transition in South Africa might be fairly characterized as “peaceful” in broad historical and comparative terms, there was in fact a considerable amount of violence, the bulk of which was not committed by the ANC’s armed wing, Umkhonto weSwize (‘Spear of the Nation,’ or ‘MK’ as it was commonly known). From February 1990 to April 1994, roughly 14,000-15,000 people died as a result of such violence. As Janet Cherry points out, “more people died in the four-year transition, after MK had suspended its armed struggle, than in the preceding three decades.”

 

Catholics and Religious Progressivism

Our Twitter Pope, Pope Francis, tweeted a message a week or so ago that seems to summarize so much about his papacy: "Inequality," he taught his tens of thousands of followers, "is the root of social evil."

And this was merely the opening act.  He followed this message up with an urgent call for the "legitimate redistribution" of wealth to benefit the world's destitute.

These teachings are in accord with the lesson Pope Francis has been delivering since that day in March, 2013, when he chose the name Francis. "Don't forget the poor." On the day of his election, Pope Francis recalled, his good friend the Brazilian Cardinal Claudio Hummes spoke to him in those very words.  And it is clear that Pope Francis has taken those words very much to heart.

The Pope's call for economic justice happily coincides with the publication of a new report, authored by E.J. Dionne, William Galston and others. Published by the Brookings Institution, the report ("Faith in Equality: Economic Justice and the Future of Religious Progressivism") recognizes that historically there has been a close relationship between progressive thought and the Church. Before the Civil War, in the early nineteenth century, it was progressive Protestants -- especially Quakers and Unitarians -- who raised high the banner of the anti-slavery movement.

For most of the twentieth century, from the early 1900s to the 1980s at least, American Catholics provided steady guidance and support for progressive causes. That pantheon of heroes included Msgr. John A. Ryan (1869-1945). He was a "Right Reverend New Dealer" according to his biographer. Msgr. Ryan popularized if he did not actually invent the term "living wage." He argued relentlessly over decades for the adoption of the minimum wage.

And then there is the saintly Dorothy Day (1897-1980). The co-founder of the Catholic Worker movement, Day was responsible for consistently calling attention to the plight of America's neediest. Nor should we forget the bishops who in 1919 issued their "Proposal for Social Reconstruction." Among other policy recommendations, they urged the United States to adopt a program of "comprehensive ... insurance against illness, invalidity, unemployment and old age."

Catholics once broadly shared these progressive ideals. In 1948, the liberal candidate Harry Truman won 65 percent of the Catholic vote. And in 1964, Catholics gave the liberal Lyndon Johnson 78 percent of their vote in the year he signed landmark civil rights legislation and launched the War on Poverty.

The Dionne and Galston report celebrates this past, but also asks important questions about what happened to the once powerful alliance between Christians and progressives. They trace the splintering of this alliance to the 1980s and the rise of the religious right.

The religious right began as a reaction to the shifting sexual ethics of the 1970s. But the religious activists who aligned with the Republican Party in seeking the reversal of Roe v. Wade may have failed in that goal, but they nevertheless remained unshaken in their new political allegiance. They have now broadly accepted a right-wing agenda, including suspicion of the social programs once so widely supported by believers.

At the same time, Dionne and Galston poignantly note that the religious right gave rise to a reaction against its agenda. Americans have become more secular, at least partially because of what they see as the excessive judgmentalism and hypocrisy of the religious right. And this has paradoxically made it more difficult for religious progressives to find political refuge, since many in the Democratic Party, their ancestral home, now find all religious claims suspect.

Still, I find the Dionne and Galston report an important development in rebuilding the connections between religious progressives and electoral politics. Their suggestions, indeed, comport well with Catholic social thought. I'd like to identify three areas where Catholic thought could help support and sustain religious progressive ideals:

(1)  Dionne and Galston call for greater attention to be paid to the poor. And this must always be the focus of progressive concerns. Jesus, after all, ministered first and foremost to the poor.  But even while we never lose sight of the poorest among us, we should also broaden our vision to support the rights of labor.

This is in keeping with Catholic social thought. Pope Leo XIII in his famous encyclical Rerum Novarum (literally, "On Revolution"), condemned the mistreatment of the working classes. Thanks "to the hardheartedness of employers and the greed of unchecked competition," Pope Leo lamented, workers have been forced to endure conditions "little better than that of slavery itself" (paragraph 3). Leo insisted that it was the solemn duty of Catholics to respect the rights of labor and alleviate these outrages.

Forty years later, in 1931, his successor, Pope Pius XI, seconded this clarion call by insisting on the adoption of comprehensive legal codes protecting and ensuring workers's rights: Society must adopt "laws [which] undertake the protection of life, health, strength, family, homes, workshops, wages, and labor hazards" (paragraph 20, Quadragesimo Anno).

Generations of religious progressives found inspiration in these paragraphs by Leo and Pius as they labored for the rights of the oppressed. We would do well to turn to them again.

(2)  Dionne and Galston also cite the need for immigration reform. Millions of undocumented women and men, many who know no other home than the United States, inhabit a legal netherworld, where they are not only subject to economic exploitation but live in continuing fear of deportation. These hard-working, law-abiding people must be put on a path to citizenship. Reform is urgently needed.

Here, too, Catholic teaching  provides valuable resources. St. John XXIII described immigrants as members of "the human family," men and women who enjoy "citizenship in that universal society, the common, world-wide fellowship" of persons. Pope Francis has lived out his pontificate with this admonition very much in mind. He has mourned the tragic loss of immigrant life and has asked wealthy societies to welcome these weary survivors into their midst.

Some members at least of the American Catholic hierarchy are taking these lessons to heart and all Catholics should do the same. The American economy would benefit, as would American society. And so would the millions of immigrants who now proudly call America home.

(3)  Finally, Catholic social thought can help in yet another way: Catholicism has developed a deep and rich notion of the common good which all progressives might call upon. American political speech has been coarsened in recent decades by a debased Ayn Randian individualism.  We inhabit a world in which the public financing of health care and education, for instance, are routinely denounced as "socialism."

This debasement of language by the right needs to be countered. And, again, we can turn to the words of that good and great Pope, St. John XXIII. The whole purpose of the State, he wrote "is the realization of the common good in the temporal order."  And that must include protecting the rights and meeting the needs of "its weaker members."

Health care is a right. Education is a right. The vocabulary of Catholic social teaching permits us to make that case. A revitalization of the language of the common good would allow progressives -- whether secular or religious -- to confront the more noxious elements of Randian right-wing thought.

We seem to stand at the threshold of the re-invigorating of progressivism. This is true in the secular as well as the religious world. In the Vatican, there is a Pope who now gives voice to the principles of social justice. Young people seem more altruistic today than perhaps ever before.  E.J. Dionne and William Galston may find the timing of their report propitious. I, for one, look forward to the rebirth of religious progressivism.

Cross-posted at: http://www.huffingtonpost.com/charles-j-reid-jr/catholics-and-religious-p_b_5297191.html

Sigmund Freud / b. Sigismund Schlomo Freud (6 May 1856 – 23 September 1939)

In honor of Sigmund Freud’s birthday, here is a link to my select bibliography of secondary literature on Freudian and Post-Freudian Psychology. In further celebration of the occasion, here is a link to my compilation for dreams and dreaming.  

Above: Freud’s home in Vienna, 19 Berggasse, draped with a swastika after the Anschluss in 1938. (Picture courtesy of the Freud Museum, London)

Class, Covetousness, and an Ethics of Empathic Caring

“2014 BMW i8 plug-in hybrid: High performance but with a conscience,” by David Undercoffler for the LA Times, May 3, 2014

Shortly after May Day, an eye-opening article (below) from the Business section of the paper calling attention to how a sub-class—“eco-chic speed freaks”—of the upper class lives (or should live) and plays, at least when sufficiently motivated by an inordinate desire to possess (hence ‘to covet’) expensive “toys.” And all this “with a conscience”! Those identified at the end of the piece as “moneyed Silicon Valley and Westside denizens” who are drawn to such “eco-chic” fast cars will no doubt protest: “We earned the right to buy such things,” the implication being that there’s no true coveting taking place here, as these cars don’t belong to anyone until they purchase them. Their consciences further satisfied by fashionable and effective “green” marketing. 

“Attention, eco-chic speed freaks: Set aside your Teslas; you have a new toy to covet.

The 2014 BMW i8 plug-in hybrid and the all-electric i3 are the first offerings from the automaker’s new i subbrand. Equal parts sex appeal and efficiency, the cars combine electrification with lightweight construction and eye-catching designs. We recently spent a day in the i8, a 357-horsepower, all-wheel-drive coupe with wing-like doors that open upward and a body that will excite anyone with a pulse.

This is no Leaf or Volt. The i8 sells for $136,000. But it’s not a Porsche 911 or Audi R8 either — though it costs about as much. This car promises high performance, but limited by a conscience. [….] Even with a $136,000 price tag, BMW should be able to attract a crowd similar to the Tesla set: moneyed Silicon Valley and Westside denizens who want their speed to come in a form that still says, ‘I care.’”

Consider the following summary from a portion of the Catholic Catechism on the prohibition of greed and envy: “Covetous desires create disorder because they move beyond satisfying basic human needs and ‘exceed the limits of reason and drive us to covet unjustly what is not ours and belongs to another or is owed to him.’ Greed and the desire to amass earthy goods without limit are forbidden. Avarice and passion for riches and power are forbidden. ‘You shall not covet’ means that we should banish our desires for whatever does not belong to us.”

Do people really need to possess $100,000+ cars even if they can afford them? What can we, as as society afford? To be sure, there are many things we might possess that we don’t literally need and yet still find sufficient justification or warrant for acquiring. But does this desire (as cultivated by capitalist marketing and involving the clever exploitation of irrational psychological impulses and dispositions) for and subsequent possession of such cars say anything to us about the socially just, ethically proper, and ecologically sane production, distribution, and consumption of precious resources and the humane employment of human labor? How does the production and consumption of such vehicles contribute meaningfully to (or impede the pursuit of) individual human flourishing, let alone the basic welfare and well-being of individuals and groups in our society? In a manifestly inegalitarian society in which there is an abundance of both absolute and relative poverty, how can we rationalize this kind of consumer production for the upper classes?    

And of course the conception of “care” invoked in the last sentence of the article, it should be clear, is not in any way related to the notion of an “ethics of empathic caring,” be it among and between human and non-human animals or in the ecological world more generally. In other words, it has nothing whatsoever to do with that kind of “care ethics” that is animated by concern with the relief of the myriad forms of avoidable and thus eliminable human suffering and which arises while acting in pursuit of individual human flourishing (in the eudaimonistic sense), the necessary conditions for which are found in the provision of general welfare and well-being made possible by coordinated collective action (which takes place, in the first instance, through the institutions and processes of democratic government and governance).  

Religion and Same-Sex Marriage

To quote Mr. Zimmerman:  The times, they are a-changin'.

Many RLL readers will be interested, I think, in this report.  Note that the report links to a transcript of the proceedings.

Happy May Day (International Workers' Day)!