These are, of course, the final words of the Nicene Creed (not counting the obligatory "amen"). Lately, I've found myself wondering how this life beyond the world in which we live came to be of such concern to so many of us. Reading about concepts of the afterlife in Roman paganism has prompted this speculation.
I find it interesting that so many managed to live without this concern, long ago. The Romans seem to have had no opinion on the subject up until the first century C.E., judging from funerary inscriptions, and sometimes urged those still living to live it up while they can, so to speak. The Epicureans and Stoics didn't seem to believe in any afterlife, or if so believed in one in which we simply merged with Nature or the Universal Reason. Things began to be different in the Roman world with the onset of the eastern religions and cults, e.g. that of Isis, Cybele and Christ.
This is not to say that those who did not believe in an afterlife were indifferent to immortality of a sort. In the ancient west, it was considered important to to have achieved such glory in life that one would be remembered for long years after death. I was somewhat disappointed to learn that Epicurus apparently decreed that his followers should celebrate his birthday after he dispersed into atoms. If it was his desire that he be regularly honored after his death, this seems to diminish him, somehow. Still, this is something different from the desire to have a continuous, personal existence.
It's interesting that many of the ancients found a way to live, and even do great things and think great thoughts without a belief that they would live on or be punished or rewarded after death. One must wonder why it is so difficult for us to do so now. I think of the near-hysteria which gripped so many of the romantics of the 19th century, especially, at the thought that there may be no God or no life beyond this world, and the contrast with these ancients is astonishing. Did we simply grow so weak, so cowardly, so craven that we quiver in fear at the thought of our dissolution, questioning the meaning of our lives and the use of doing anything while they lived and fought and thought and worked and achieved regardless of their fate?
Saturday, July 24, 2010
Tuesday, July 20, 2010
Legal Pragmatism and the Individual
I'm in the midst of reading a book by Michael Sullivan called Legal Pragmatism. It seems a good analysis of the proper application of Pragmatism to the Philosophy of Law. I'm pleased by his criticism of Rorty, Dworkin and the sometimes amusing, sometimes interesting, sometimes bewildering Richard Posner, who graces the Seventh Circuit Court of Appeals. His opinions can be fascinating, if not very useful.
I have to admit I didn't know that Rorty dabbled in the Philosophy of Law, but should not be surprised as he seemed to enjoy dabbling in most everything. The fact that Rorty apparently felt that the techniques literary criticism should be applied to the law, and that the poets have much to teach legal thinkers, is rather disturbing, though. Well, it's actually rather laughable, I think. I contemplate citing the great poets to the courts I practice in front of and must smile. But, no doubt he wasn't addressing anything so mundane as the actual practice of law. No doubt we all gain from reading great poetry, but I doubt it has any particular application to the law.
What I find particularly interesting is his discussion of individual rights. Legal pragmatists have apparently been subject to criticism because they do not ascribe any inherent value to rights, but think of them only as factors to be taken into account in coming to an appropriate decision. The same argument seems to be made regarding their view of precedent--pragmatists are said to lack respect for precedent.
Sullivan explains, appropriately I think, that the fact that pragmatists may not think of individual rights (or precedent, or anything for that matter) as having an inherent value--in and of themselves, without reference to their consequences--doesn't mean that pragmatists maintain (or must maintain to be consistent) they are not to be valued, enforced, applied and protected. Pragmatism in general has been unfairly criticized due to its denial of absolutes, I think; such a denial doesn't cast thought adrift and without guidance in pragmatism, I believe, because of its concern for the application of intelligence in all circumstances. Pragmatism urges the application of a method, based largely on the scientific method, which has been shown to be a reliable guide to experience, and this prevents it from descending into mere relativism or subjectivism.
But, I think there is a legitimate concern here, and that is how one can go about applying pragmatism (or any guiding philosophy) in the law without unduly infringing individual rights. It is undeniable that certain people will want to conduct themselves in certain ways regardless of what the law may proscribe, regardless of the fact that the law may be perfectly reasonable, and clearly so to most. Under what circumstances is the law properly applied regardless of the desires of individuals and what they consider to be their rights? When the exercise of those rights cause harm is a sensible and time-honored response. Is it possible that inherent rights may be a useful fiction (like other things in the law) to prevent the unnecessary exercise of the power of the law or, at least, that they be accorded a priority among competing demands? The pragmatist may say that such decisions must be made on a case-by-case basis, but I think it is possible to maintain that certain of what we call rights are to be presumptively granted special value without being absolutist.
I have to admit I didn't know that Rorty dabbled in the Philosophy of Law, but should not be surprised as he seemed to enjoy dabbling in most everything. The fact that Rorty apparently felt that the techniques literary criticism should be applied to the law, and that the poets have much to teach legal thinkers, is rather disturbing, though. Well, it's actually rather laughable, I think. I contemplate citing the great poets to the courts I practice in front of and must smile. But, no doubt he wasn't addressing anything so mundane as the actual practice of law. No doubt we all gain from reading great poetry, but I doubt it has any particular application to the law.
What I find particularly interesting is his discussion of individual rights. Legal pragmatists have apparently been subject to criticism because they do not ascribe any inherent value to rights, but think of them only as factors to be taken into account in coming to an appropriate decision. The same argument seems to be made regarding their view of precedent--pragmatists are said to lack respect for precedent.
Sullivan explains, appropriately I think, that the fact that pragmatists may not think of individual rights (or precedent, or anything for that matter) as having an inherent value--in and of themselves, without reference to their consequences--doesn't mean that pragmatists maintain (or must maintain to be consistent) they are not to be valued, enforced, applied and protected. Pragmatism in general has been unfairly criticized due to its denial of absolutes, I think; such a denial doesn't cast thought adrift and without guidance in pragmatism, I believe, because of its concern for the application of intelligence in all circumstances. Pragmatism urges the application of a method, based largely on the scientific method, which has been shown to be a reliable guide to experience, and this prevents it from descending into mere relativism or subjectivism.
But, I think there is a legitimate concern here, and that is how one can go about applying pragmatism (or any guiding philosophy) in the law without unduly infringing individual rights. It is undeniable that certain people will want to conduct themselves in certain ways regardless of what the law may proscribe, regardless of the fact that the law may be perfectly reasonable, and clearly so to most. Under what circumstances is the law properly applied regardless of the desires of individuals and what they consider to be their rights? When the exercise of those rights cause harm is a sensible and time-honored response. Is it possible that inherent rights may be a useful fiction (like other things in the law) to prevent the unnecessary exercise of the power of the law or, at least, that they be accorded a priority among competing demands? The pragmatist may say that such decisions must be made on a case-by-case basis, but I think it is possible to maintain that certain of what we call rights are to be presumptively granted special value without being absolutist.
Thursday, July 15, 2010
Purposeless Thought
It strikes me that there is something in us which induces us to engage in very involved, but pointless, thought on issues which have no significance to life as we live it. We like to think of this exercise as profound and of transcendent significance, but I wonder whether there is any reason to do so.
Each day, we interact with others and the world. In doing so, we don't give thought to whether there is a world, or others, nor do we consider whether there is any basis on which we can know others or the world, or how we can have such knowledge. We engage in life knowing full well that it is filled with uncertainties, but manage to muddle through for the most part based on past experience and intelligent, though not perfect, inferences concerning how people and the world in general "work." We don't expect certainty. We don't doubt unless we have cause to doubt. We don't think except in connection with resolving certain issues or concerns or problems, or in connection with achieving some end, which may be a means to yet another end.
Why do we doubt, or at least purport to doubt, when we have no reason to do so? Why do we insist on certainty in, e.g. knowledge or morals when we accept in the "real world" that there can be no certainty in most if not all cases, and indeed act without being absolutely certain in many cases simply because we must act if we're going to accomplish anything (we understand, in other words, that if we wait for certainty nothing will happen, and we want something to happen)?
Perhaps Dewey is right, and the quest for certainty is merely a holdover from the aristocratic disdain ancient thinkers had for ordinary life and its concerns. It was felt that there had to be certain truths, as the perfect was necessarily certain and unchanging; mutable, changeable, temporary things are inferior. Perhaps Plato poisoned us so completely that we engage in this quest and belittle the lives we lead to such an extent that we insist that "ordinary day-to-day life" is unimportant, or somehow wrong, or incomplete--insufficient for our purposes.
What, though, can those purposes be? What do we achieve by seeking certainty, or doubting where there is no reason to doubt, or searching for some truth apart from what we do and how we live? I know of nothing which we have achieved, except disagreement and endless speculation. I don't think it's appropriate to speak of purposes, or problems, which are unrelated to what we encounter living in the world. If we don't encounter them in the world, then thinking of them can achieve nothing in the world. If such thought can achieve nothing in the world, why do we engage in it so readily, and even honor those who devote themselves to such thought with particular skill?
There are very real, very significant problems which we encounter in the world, as part of the world. If we addressed them with the same skill and intensity as we have addressed problems which make no difference to our "ordinary life", I can't help but think we would be much better off than we are now. Perhaps we are perverse, though, and don't really want to be better off. Or perhaps we don't like the "real world."
We humans are strange creatures, dreaming of perfection but possibly incapable of bettering ourselves.
Each day, we interact with others and the world. In doing so, we don't give thought to whether there is a world, or others, nor do we consider whether there is any basis on which we can know others or the world, or how we can have such knowledge. We engage in life knowing full well that it is filled with uncertainties, but manage to muddle through for the most part based on past experience and intelligent, though not perfect, inferences concerning how people and the world in general "work." We don't expect certainty. We don't doubt unless we have cause to doubt. We don't think except in connection with resolving certain issues or concerns or problems, or in connection with achieving some end, which may be a means to yet another end.
Why do we doubt, or at least purport to doubt, when we have no reason to do so? Why do we insist on certainty in, e.g. knowledge or morals when we accept in the "real world" that there can be no certainty in most if not all cases, and indeed act without being absolutely certain in many cases simply because we must act if we're going to accomplish anything (we understand, in other words, that if we wait for certainty nothing will happen, and we want something to happen)?
Perhaps Dewey is right, and the quest for certainty is merely a holdover from the aristocratic disdain ancient thinkers had for ordinary life and its concerns. It was felt that there had to be certain truths, as the perfect was necessarily certain and unchanging; mutable, changeable, temporary things are inferior. Perhaps Plato poisoned us so completely that we engage in this quest and belittle the lives we lead to such an extent that we insist that "ordinary day-to-day life" is unimportant, or somehow wrong, or incomplete--insufficient for our purposes.
What, though, can those purposes be? What do we achieve by seeking certainty, or doubting where there is no reason to doubt, or searching for some truth apart from what we do and how we live? I know of nothing which we have achieved, except disagreement and endless speculation. I don't think it's appropriate to speak of purposes, or problems, which are unrelated to what we encounter living in the world. If we don't encounter them in the world, then thinking of them can achieve nothing in the world. If such thought can achieve nothing in the world, why do we engage in it so readily, and even honor those who devote themselves to such thought with particular skill?
There are very real, very significant problems which we encounter in the world, as part of the world. If we addressed them with the same skill and intensity as we have addressed problems which make no difference to our "ordinary life", I can't help but think we would be much better off than we are now. Perhaps we are perverse, though, and don't really want to be better off. Or perhaps we don't like the "real world."
We humans are strange creatures, dreaming of perfection but possibly incapable of bettering ourselves.
Thursday, July 8, 2010
Preempting Arizona
I find it reassuring to learn that the federal government has enough lawyers worth their salt sufficient to draft a complaint that attacks Arizona's immigration law on what seems to be a legitimate legal basis (which is not to say a valid one). The complaint seems a bit chatty to me as complaints go, and there is more in the way of unnecessary editorial comment in it than I'm used to, but it contains no blatant claims of racism or unutterable evil on the part of this state, and this is refreshing in these loudly self-righteous times. It may even be that I find it unduly prolix mostly because I'm an older lawyer. The complaints I read drafted by younger colleagues are often noisy, exclamatory things, and perhaps that's the way they're being taught. I'm used to notice pleading, and hold I think the well-grounded belief that no judge is going to be swayed by a complaint of all things, and so rhetorical flourishes at that stage of pleading is silly chest-pounding.
Federal preemption and the Supremacy Clause won't set hearts racing or flags and placards waiving, and perhaps worse yet for some don't create much opportunity for self-congratulatory posturing, but they raise serious issues worthy of judicial consideration. Is immigration law a peculiarly federal concern? Would the intrusion of the states in this area of law cause chaos, a multiplicity of possibly inconsistent immigration systems, confusion in law enforcement and among those sincerely interested in obtaining citizenship, jurisdictional issues? These are good legal questions.
A complicating factor here may be the fact that the Arizona law seems to incorporate the federal law by reference. This would seem to mitigate claims that confusion results in this particular case. Also interesting will be the extent to which the federal government's apparent failure to enforce federal law on this issue will be a factor. What can be said to be preempted by federal law where federal law is not applied, for any reason?
One wonders if this is ultimately a win-win situation for Arizona and those that sympathize with its stance. It may be that even if its law is struck down (and the likelihood is that this won't culminate at the District Court level) it will have compelled the enforcement of the federal law, or perhaps reforms in the law. One thing is certain, I think--this controversy is in the courts now, and so we may at least hear less from the assorted pundits, politicians and preachers of the left and right as a result. And that can only be considered a good thing.
Federal preemption and the Supremacy Clause won't set hearts racing or flags and placards waiving, and perhaps worse yet for some don't create much opportunity for self-congratulatory posturing, but they raise serious issues worthy of judicial consideration. Is immigration law a peculiarly federal concern? Would the intrusion of the states in this area of law cause chaos, a multiplicity of possibly inconsistent immigration systems, confusion in law enforcement and among those sincerely interested in obtaining citizenship, jurisdictional issues? These are good legal questions.
A complicating factor here may be the fact that the Arizona law seems to incorporate the federal law by reference. This would seem to mitigate claims that confusion results in this particular case. Also interesting will be the extent to which the federal government's apparent failure to enforce federal law on this issue will be a factor. What can be said to be preempted by federal law where federal law is not applied, for any reason?
One wonders if this is ultimately a win-win situation for Arizona and those that sympathize with its stance. It may be that even if its law is struck down (and the likelihood is that this won't culminate at the District Court level) it will have compelled the enforcement of the federal law, or perhaps reforms in the law. One thing is certain, I think--this controversy is in the courts now, and so we may at least hear less from the assorted pundits, politicians and preachers of the left and right as a result. And that can only be considered a good thing.
Sunday, July 4, 2010
Lawyers, Guns and Oil
I miss Warren Zevon, of course, but devote this post primarily to the consideration of things legal, and the sometimes refreshing fact that they impact the world of which we are a part, regardless of our fondest beliefs to the contrary. Philosophy will creep in however.
I'm saddened to learn that the Great Oil Blot will likely make it to the Florida Keys. I'm fond of Key West, and not merely for the fact that it was the site of a fist fight between Ernest Hemingway and Wallace Stevens. There is a stretch of beach at the Casa Marina which is quite lovely, and I hate to think of it filled with what have been called tar balls. Soon, perhaps, we will be favored with the sight of our President on that beach, frowning in an effort to emote for the cameras. The things we ask of our politicians.
I'm not all that saddened, or surprised, at the Supreme Court's decision in the McDonald case. The Fourteenth Amendment has been used for quite some time now to restrict or prohibit state action deemed to impose on the rights granted by the Constitution, and applying it with respect to the Second Amendment seems demanded by consistency, if nothing else. I, personally, have never been fascinated by guns, nor have I ever been inclined to think of them much; as a result, I haven't pondered whether I have or should have a right to lovingly possess them. If we have a right to bear arms, though, I think we should have a right to bear swords as well as guns.
According to the Declaration of Independence, we are endowed by our Creator with certain rights. The Declaration, of course, is not a law. One must remember this from time to time. The Constitution says nothing about the will of our Creator, if I recall correctly, and the Constitution is very much a legal document, fashioned--largely by lawyers, and good ones--to function as law. Lawyers understand that laws are broken, repealed and remade with startling frequency. It would be inappropriate, therefore, to attribute them to any competent Creator.
It seems we don't have a right to clean beaches in quite the same sense as we have a right to possess guns aplenty. To the extent that our property or livelihoods are damaged, though, we have civil recourse; there is criminal recourse as well when the damage is intentionally caused.
Let's acknowledge that our laws are indeed our laws. We made them, and we need them. Some may claim they are based on God's laws, or should be based on them. I've always thought it rather presumptuous to claim knowledge of God's laws, God's will or God, for that matter. God can't be much of a God if we know what he thinks or desires, or what he is. I would say that it is possible to maintain that we sometimes fashion laws in accord with "natural law" if we mean by this that we do so based on what we can legitimately discern regarding human nature. In any case, we make laws, we break them, we enforce them, we comply with them, regardless of the source of their inspiration.
What is their purpose? For what reason should they be made, repealed or remade, or broken or followed? Once justly made, how should they be enforced? These are practical questions, and it seems to me the only significant questions about law, unless one's interest is legal history. And it seems to me that their purpose is to allow us the opportunity to be happy and develop our own abilities to the extent that we can do so without causing undue harm. Even those who claim that our law must follow those supposedly imposed by God would seem to be fated, as it were, to take this position. It would be somewhat difficult even for them to claim that the purpose of laws is to make us miserable, limit our opportunities, etc.
There are those who, like Plato, believe only they or those who think like them know how to achieve such results. There are those who, like Heidegger, or Hegel or Marx, think that some mystic leader or force operative in our history knows what is best. Democracy or some variant of it, though, seems to be more likely to achieve such results, simply because it is more likely to recognize and give weight to what people actually think about and desire when it comes to their happiness. Democracy has its problems. Democracies will err. Democracies have the best chance, though, of coming to desirable results, as they are susceptible to change, and such change need not be violent.
Democracy, then, is not a form of government favorable to the great system builders among us, nor is it conducive to those who see the path to be taken and believe others should follow. When such people appear in our politics, we should worry. Democracy properly understood is a very pragmatic form of government, I think.
I'm saddened to learn that the Great Oil Blot will likely make it to the Florida Keys. I'm fond of Key West, and not merely for the fact that it was the site of a fist fight between Ernest Hemingway and Wallace Stevens. There is a stretch of beach at the Casa Marina which is quite lovely, and I hate to think of it filled with what have been called tar balls. Soon, perhaps, we will be favored with the sight of our President on that beach, frowning in an effort to emote for the cameras. The things we ask of our politicians.
I'm not all that saddened, or surprised, at the Supreme Court's decision in the McDonald case. The Fourteenth Amendment has been used for quite some time now to restrict or prohibit state action deemed to impose on the rights granted by the Constitution, and applying it with respect to the Second Amendment seems demanded by consistency, if nothing else. I, personally, have never been fascinated by guns, nor have I ever been inclined to think of them much; as a result, I haven't pondered whether I have or should have a right to lovingly possess them. If we have a right to bear arms, though, I think we should have a right to bear swords as well as guns.
According to the Declaration of Independence, we are endowed by our Creator with certain rights. The Declaration, of course, is not a law. One must remember this from time to time. The Constitution says nothing about the will of our Creator, if I recall correctly, and the Constitution is very much a legal document, fashioned--largely by lawyers, and good ones--to function as law. Lawyers understand that laws are broken, repealed and remade with startling frequency. It would be inappropriate, therefore, to attribute them to any competent Creator.
It seems we don't have a right to clean beaches in quite the same sense as we have a right to possess guns aplenty. To the extent that our property or livelihoods are damaged, though, we have civil recourse; there is criminal recourse as well when the damage is intentionally caused.
Let's acknowledge that our laws are indeed our laws. We made them, and we need them. Some may claim they are based on God's laws, or should be based on them. I've always thought it rather presumptuous to claim knowledge of God's laws, God's will or God, for that matter. God can't be much of a God if we know what he thinks or desires, or what he is. I would say that it is possible to maintain that we sometimes fashion laws in accord with "natural law" if we mean by this that we do so based on what we can legitimately discern regarding human nature. In any case, we make laws, we break them, we enforce them, we comply with them, regardless of the source of their inspiration.
What is their purpose? For what reason should they be made, repealed or remade, or broken or followed? Once justly made, how should they be enforced? These are practical questions, and it seems to me the only significant questions about law, unless one's interest is legal history. And it seems to me that their purpose is to allow us the opportunity to be happy and develop our own abilities to the extent that we can do so without causing undue harm. Even those who claim that our law must follow those supposedly imposed by God would seem to be fated, as it were, to take this position. It would be somewhat difficult even for them to claim that the purpose of laws is to make us miserable, limit our opportunities, etc.
There are those who, like Plato, believe only they or those who think like them know how to achieve such results. There are those who, like Heidegger, or Hegel or Marx, think that some mystic leader or force operative in our history knows what is best. Democracy or some variant of it, though, seems to be more likely to achieve such results, simply because it is more likely to recognize and give weight to what people actually think about and desire when it comes to their happiness. Democracy has its problems. Democracies will err. Democracies have the best chance, though, of coming to desirable results, as they are susceptible to change, and such change need not be violent.
Democracy, then, is not a form of government favorable to the great system builders among us, nor is it conducive to those who see the path to be taken and believe others should follow. When such people appear in our politics, we should worry. Democracy properly understood is a very pragmatic form of government, I think.
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