The commentary I've read regarding the decision of the SCOTUS on the campaign financing law serves to support an opinion I've held for quite some time. That is, that associating the law with justice is a fundamental error, albeit a common one.
Every practicing lawyer has encountered (and dreads) the client who engages in litigation driven by the belief that they are right, and their opponent wrong, and more often than not evil. Such clients are usually eager to go to trial, to punish the wrongdoer and achieve the just result they expect from any impartial judge or jury. Any effort to persuade them that a trial won't determine who is right and who is wrong, and will at best tell them what the law provides for under the circumstances, which may not be the same thing, is futile.
Those of us who are not lawyers naturally tend to think of court decisions as right or wrong. Those of us who are lawyers often think of them in that way too; but we recognize that what is right and what is wrong is not the issue decided by the court. What is decided is what the law says about the situation. This, at least, is the ideal. Judges are human, and their personal beliefs will often intrude in their decision. But prior case law, the rule of precedent, the rules of statutory construction, and other rules and aspects of the vast body of the law make it difficult for judges to render decisions based solely on personal preference. They exist, in part, due to a justifiable desire that judges refrain from imposing their personal preferences (and be "impartial"). In this fashion, decisions rendered are to some extent predictable and uniform, which is deemed desirable in a system developed to regulate social conduct.
Considerartions of what is just, what is right or wrong, often inform legislation, and appropriately so. When legislators become too concerned with such considerations, however, and vote solely based on their personal moral beliefs, we get bad laws, like Prohibition.
So, I've felt that much of the commentary I've read on the recent decision is too often an expression of outrage, and rather lacking in analysis and understanding of the legal issues involved. Those who believe the decision, and the majority of the court in this case, corrupt and evil would I think be surprised if they read the decision, and especially the dissents. They would find that even the dissenters approach the issue very differently than they do, because they are considering the application of the law, not what is right and what is wrong.
The right of free speech is accorded such significance in our law that there is a presumption the right should prevail in most circumstances. Government may regulate it only to the extent that there exists some compelling interest which requires the regulation. Those who seek the regulation have the burden of establishing that it is compelling. Claiming corporations should not have free speech rights is a simplistic response to the issues involved in the decision. Generally, those who make such an assertion find themselves in something of a bind when asked whether non-profit corporations formed as citizens groups, to promote a particular political and social agenda, should have such rights. And, since the media largely operates through the corporate form, denying such rights to corporations generally becomes problematic. When one starts picking and choosing corporations which should and should not have such rights, things get very interesting indeed.
Assessing this decision (and the law generally) solely from the standpoint of what we personally believe is just, therefore, is not particularly useful. It should be assessed as a legal decision, i.e. based on the law. The law in this case happens to be the Constitution and a great mass of case law, applied to the campaign finacing law. If the decision doesn't appropriately analyze or apply the law, the pertinent question is what to do about it. When that question is realistically addressed, the options are change the Constitution, rewrite the law in question or adopt new laws drafted to avoid the decision, or wait for the decision to be overturned.
Sunday, January 31, 2010
Sunday, January 24, 2010
The Etiology of the Christian Persecutions
Reading about the remarkable reign of the Emperor Diocletian prompts some speculation regarding the causes of the persecutions of the Christians during his principate and at other times during the Roman Empire.
The empire was normally fairly tolerant when it came to religious worship. However, it disliked certain forms of worship. Prior to the advent of Christianity, Rome banned some cults it considered weird and outlandish and so, of course, un-Roman. For example, the thought of being, literally, washed in the blood of the bull (so to speak) was initially frowned on, and the tendency of certain male worshipers of the Great Mother to castrate themselves created some not unnatural distress. Most of the banned religions managed to sneak back into the Roman world, however, and even came to be accepted in the sense that no effort was made by the emperors to stamp them out.
Christianity, though, was subject to persecution more than once. It was certainly considered weird, at one point. There were all sorts of stories regarding orgies and cannibalism being part of Christian worship, also incest (orgies themselves being, perhaps, not necessarily objectionable to the Roman mind). But, there had to be more involved for certain of the emperors to react as they did.
And there was, of course. Christians, or at least some of them, refused to pay homage to the emperor in the religious sense, generally by sacrifice. It's thought that this in particular made them the subject of persecution. This makes some sense, as Christians therefore would be considered to be against, if not a threat to, the emperor and thus the empire.
What I find interesting is why Christians would refuse to engage in this act, which probably required nothing in the nature of sincere belief or intent, and was simply a ritual gesture. The answer that they refused because they were good, or wise, or honest, and the empire and/or emperor bad, and the emperor not divine, is generally given. But I think there was more involved.
The Christians worshiped a God who became human. The possibility that a human could be divine, therefore, would presumably not be objectionable to them. However, their religion provided that only a particular human could be divine, and no other. In this sense, the Christian view of a divine human differed from the Greek and Roman view which had been prevalent for some time. The Olympian gods obviously had various human offspring. The emperors had been granted divine status on their death for some time (some, like Caligula, claiming it during their lifetimes). The divine status of the emperor was not objectionable to most pagans; they were not unused to the thought of humans having or asserting divinity in some sense. Christians, however, at least those who were not Arians, believed that the one God had become human only once, in the form of Jesus. And, as the Arians cam to learn, the orthodox Christians strongly objected to the idea of Jesus having a limited divinity--he was the same in substance with the Father, not merely similar. The thought of someone being divine but not God was foreign to Christianity.
When Diocletian as part of his efforts to reform the empire sought to protect the emperor from assassination and deposition by formally taking on divine status, he struck at the heart of the Christian doctrine. If only one human could be divine, the emperor could not be. In this and in other things Christianity was (is) an exclusive religion. There was only one God, all others therefore were false, and evil. There could be only one human who was divine, and all other claimants therefore were false, and evil. The idea of someone who was not Jesus claiming to be divine was inherently inconsistent with Christian doctrine. It does not justify the persecutions, but it seems to be true that Christianity's own intolerance of other gods, and other religions, played a role in its persecution under the empire. Certainly it explains its persecution of pagans, and Jews, and heretical Christians, after it subsumed the empire itself
The empire was normally fairly tolerant when it came to religious worship. However, it disliked certain forms of worship. Prior to the advent of Christianity, Rome banned some cults it considered weird and outlandish and so, of course, un-Roman. For example, the thought of being, literally, washed in the blood of the bull (so to speak) was initially frowned on, and the tendency of certain male worshipers of the Great Mother to castrate themselves created some not unnatural distress. Most of the banned religions managed to sneak back into the Roman world, however, and even came to be accepted in the sense that no effort was made by the emperors to stamp them out.
Christianity, though, was subject to persecution more than once. It was certainly considered weird, at one point. There were all sorts of stories regarding orgies and cannibalism being part of Christian worship, also incest (orgies themselves being, perhaps, not necessarily objectionable to the Roman mind). But, there had to be more involved for certain of the emperors to react as they did.
And there was, of course. Christians, or at least some of them, refused to pay homage to the emperor in the religious sense, generally by sacrifice. It's thought that this in particular made them the subject of persecution. This makes some sense, as Christians therefore would be considered to be against, if not a threat to, the emperor and thus the empire.
What I find interesting is why Christians would refuse to engage in this act, which probably required nothing in the nature of sincere belief or intent, and was simply a ritual gesture. The answer that they refused because they were good, or wise, or honest, and the empire and/or emperor bad, and the emperor not divine, is generally given. But I think there was more involved.
The Christians worshiped a God who became human. The possibility that a human could be divine, therefore, would presumably not be objectionable to them. However, their religion provided that only a particular human could be divine, and no other. In this sense, the Christian view of a divine human differed from the Greek and Roman view which had been prevalent for some time. The Olympian gods obviously had various human offspring. The emperors had been granted divine status on their death for some time (some, like Caligula, claiming it during their lifetimes). The divine status of the emperor was not objectionable to most pagans; they were not unused to the thought of humans having or asserting divinity in some sense. Christians, however, at least those who were not Arians, believed that the one God had become human only once, in the form of Jesus. And, as the Arians cam to learn, the orthodox Christians strongly objected to the idea of Jesus having a limited divinity--he was the same in substance with the Father, not merely similar. The thought of someone being divine but not God was foreign to Christianity.
When Diocletian as part of his efforts to reform the empire sought to protect the emperor from assassination and deposition by formally taking on divine status, he struck at the heart of the Christian doctrine. If only one human could be divine, the emperor could not be. In this and in other things Christianity was (is) an exclusive religion. There was only one God, all others therefore were false, and evil. There could be only one human who was divine, and all other claimants therefore were false, and evil. The idea of someone who was not Jesus claiming to be divine was inherently inconsistent with Christian doctrine. It does not justify the persecutions, but it seems to be true that Christianity's own intolerance of other gods, and other religions, played a role in its persecution under the empire. Certainly it explains its persecution of pagans, and Jews, and heretical Christians, after it subsumed the empire itself
Thursday, January 21, 2010
The Apotheosis (well, probably not really) of Robert B. Parker
It's sad to learn of his death. I don't think of him as a giant of literature, but he created an interesting character in Spenser, and I think the quality of his work was generally quite good. I enjoy mystery novels, and I enjoyed his work because it had much in common with that of Raymond Chandler, but managed to be different. His hero was tough (sometimes, rather fantastically so) and street-smart but also well read and even learned. Marlowe studied the games of chess masters (he seems to have had a preference for Steinmetz), Spenser quoted great poets, including my personal favorite, Wallace Stevens. But, unlike Philo Vance, Spenser didn't flaunt his intelligence or the fact that he was enormously well read although, unlike Marlowe, he didn't seem to mind letting people (even street types) know this about himself.
I think it's fair to say that at least as far as the Spenser novels are concerned, his work was getting progressively worse. The all-too-frequent exchanges between Spenser and Susan Silverman were beoming so coy, so cloying, as to be irritating. Spenser and Hawk were taking on the status of superhumans when compared with their increasingly miserable opponents, with the exception of The Grey Man, perhaps. He seemed to try rather too hard to populate his Justice League (Spenser's buddies who would sometime join him in battling evil) with representatives of most ethnic groups and sexual persuasions. It was somewhat creepy when the first Pearl the Wonder Dog died, and Spenser found a dog exactly like her and brought her home to Susan, who named her Pearl,. Nevertheless I read all the Spenser novels, and am sorry we will see no more. I never could get myself to read the Sunny Randall novels, but thought some of the Jesse Stone stories were good. I have a certain fondness for fictional characters who are alcoholics (and so have enjoyed Lawrence Block's stories as well).
I won't mourn the passing of Mr. Parker in quite the same way as I did that of Patrick O'Brian. I'll miss Jack Aubry and Stephen Maturin far more than I will Spenser. Still, there is one less good book to anticipate in life, and that is good cause for sadness.
I think it's fair to say that at least as far as the Spenser novels are concerned, his work was getting progressively worse. The all-too-frequent exchanges between Spenser and Susan Silverman were beoming so coy, so cloying, as to be irritating. Spenser and Hawk were taking on the status of superhumans when compared with their increasingly miserable opponents, with the exception of The Grey Man, perhaps. He seemed to try rather too hard to populate his Justice League (Spenser's buddies who would sometime join him in battling evil) with representatives of most ethnic groups and sexual persuasions. It was somewhat creepy when the first Pearl the Wonder Dog died, and Spenser found a dog exactly like her and brought her home to Susan, who named her Pearl,. Nevertheless I read all the Spenser novels, and am sorry we will see no more. I never could get myself to read the Sunny Randall novels, but thought some of the Jesse Stone stories were good. I have a certain fondness for fictional characters who are alcoholics (and so have enjoyed Lawrence Block's stories as well).
I won't mourn the passing of Mr. Parker in quite the same way as I did that of Patrick O'Brian. I'll miss Jack Aubry and Stephen Maturin far more than I will Spenser. Still, there is one less good book to anticipate in life, and that is good cause for sadness.
Wednesday, January 20, 2010
The Roman Games and Honesty
I've always had a kind of fascination with the ancient Roman games, or ludi. By the games, I don't mean gladitorial combat exclusively, but will include for purposes of this post the beast hunts and fights (man and beast, beast and beast), the execution of criminals and objectionables in the ampitheatres.
These were significant throughout the Roman Empire (mostly in the west) for centuries, of course. Certain of the philosophers would write of them disparagingly, but it seems they disliked them more because they were a spectacle and unseemly than immoral. Even "good" emperors such as Augustus enjoyed them. Marcus Aurelius found them dull, and attended them only as a kind of obligation, annoying the crowd by working through them rather than observing them keenly. But he did attend them, and made no serious effort to ban them.
The games of the ampitheatre seem to have been a peculiarly Roman custom, something characteristically Roman (possibly Etruscan in origin). They spread as Rome spread. Some of those incorporated into the Empire apparently came to enjoy them as well.
History tells us that death in the gladitorial games was not as prevalent as some have come to believe. They were well regulated, for the most part, and the death of one of the contestants was not required. The emphasis was more on skill than slaughter, it seems. And, it is clear that the games didn't invoke solely the baser aspects of human nature. Crowds were sometimes moved to pity, for gladiators and beasts. Elephants in particular seem to have favored and admired.
But death was essential. Those who died were expected to die well, without fear. Some Romans claimed that the games taught bravery and fortitude, and were justified on that basis.
Comparisons are made with modern sports, such as football, boxing, and more recently the "extreme" forms of fighting one gets to see on TV if one is so inclined. But the presence, and the acceptance, of death simply is not there as it was in the case of the Roman games.
Does this fact indicate that we are better, or more civilized, than the Romans? I wonder if the fact that we no longer tolerate death in our amusements as they did merely perpetuates the violence we are willing to accept. How many would participate in such sports if death was as likely now as it was then? The great majority of those who participated in the Roman games were slaves; they had no choice. A few freeman opted to join the games. Imagine how many would have, though, had death not been such a risk, and the rewards so high as they are now.
Perhaps in our love for violent sports we simply are not as honest and forthright as the ancient Romans. It's clear we are attracted to violence, and will pay to see it. We simply don't want to face its inevitable result when allowed to take its course, i.e. when the violence is serious. We play at violence in our sports. Perhaps we are not better than the Romans; we just lack their nerve, and the clarity of their perception in this.
These were significant throughout the Roman Empire (mostly in the west) for centuries, of course. Certain of the philosophers would write of them disparagingly, but it seems they disliked them more because they were a spectacle and unseemly than immoral. Even "good" emperors such as Augustus enjoyed them. Marcus Aurelius found them dull, and attended them only as a kind of obligation, annoying the crowd by working through them rather than observing them keenly. But he did attend them, and made no serious effort to ban them.
The games of the ampitheatre seem to have been a peculiarly Roman custom, something characteristically Roman (possibly Etruscan in origin). They spread as Rome spread. Some of those incorporated into the Empire apparently came to enjoy them as well.
History tells us that death in the gladitorial games was not as prevalent as some have come to believe. They were well regulated, for the most part, and the death of one of the contestants was not required. The emphasis was more on skill than slaughter, it seems. And, it is clear that the games didn't invoke solely the baser aspects of human nature. Crowds were sometimes moved to pity, for gladiators and beasts. Elephants in particular seem to have favored and admired.
But death was essential. Those who died were expected to die well, without fear. Some Romans claimed that the games taught bravery and fortitude, and were justified on that basis.
Comparisons are made with modern sports, such as football, boxing, and more recently the "extreme" forms of fighting one gets to see on TV if one is so inclined. But the presence, and the acceptance, of death simply is not there as it was in the case of the Roman games.
Does this fact indicate that we are better, or more civilized, than the Romans? I wonder if the fact that we no longer tolerate death in our amusements as they did merely perpetuates the violence we are willing to accept. How many would participate in such sports if death was as likely now as it was then? The great majority of those who participated in the Roman games were slaves; they had no choice. A few freeman opted to join the games. Imagine how many would have, though, had death not been such a risk, and the rewards so high as they are now.
Perhaps in our love for violent sports we simply are not as honest and forthright as the ancient Romans. It's clear we are attracted to violence, and will pay to see it. We simply don't want to face its inevitable result when allowed to take its course, i.e. when the violence is serious. We play at violence in our sports. Perhaps we are not better than the Romans; we just lack their nerve, and the clarity of their perception in this.
Sunday, January 17, 2010
Haiti and the Problem of Evil/Suffering
The great earthquake of Lisbon is said to have prompted a great deal of thought regarding the Problem of Evil, or Suffering. Perhaps that of Haiti should do the same. In any case, it's prompting thought by me.
I suppose one possible "answer" to the question would be that of the jovial Mr. Robertson. An omnipotent, all-knowing God, very capable of intervening in his creation, cannot be blamed for what happens to those who strike deals with the devil--they are themselves to blame for what happens to them, or at best (?) the devil is to blame (though the devil, one would think, if he is as traditionally described, would be content with tormenting the souls of the Haitians throughout eternity; visiting an earthquake upon them in addition to eternal torment would seem something of a breach of contract).
Presumably, then, Robertson's response would be that God does not create evil--his erring human creations do, with or without the assistance of another of God's creations, the devil, who is very able but also, of course, doomed to failure, because God is good, not evil, and God trumps Satan.
God, therefore, has granted us free will, and if we misuse it that is not God's fault. We create evil in the world, or evil is the result of the acts of another (but to God necessarily lesser) power.
Then again, it must be noted that except perhaps in the increasingly unusual mind of Mr. Robertson, this was a natural disaster--it was not man-made, and need not have been Satan-made. The result is terrible, but it was not intended, by anyone. So, it cannot propertly be said to be evil, or the result of evil intent.
I've always found such answers (and every answer to the Problem of which I'm aware) to be unsatisfactory. If we assume that God has the power to intervene in creation, the question is not merely whether he is the cause of evil/suffering, but if he is not the cause why he allows it to happen when he could prevent it. Let's say that certain Haitians made a deal with the devil more than two hundered years ago. God, presumably, was well aware of the fact that this would (somehow) result in this earthquake, and could have prevented it, avoiding the death and suffering which have resulted. He allowed it to occur, however. Or, God well knew that the natural disaster would occur, could have prevented it but did not do so.
What are we to conclude? That he so valued the free will of the Haitians who stuck the deal with the devil (and the free will of humans generally if that is the true cause of evil) that he feels bound to allow the resulting evil to take place? Why, then, does he value free will to such an extent as to have allowed it to cause such pain and death throughout history? If the devil is the cause of evil, why grant him full reign? Why does God feel that nature must take its course even if that course causes terrible pain and the death of thousands?
The answers to the Problem usually given, then, are not answers at all, as they simply create more questions, which ultimately lead to a single question: "Why?" And the response to that question is an appeal to mystery, or the fact that we cannot know; or perhaps a response that everything is ultimately for the good, but we can't know how because only God can, and such. Or perhaps that God loves us so much that he granted us free will even though he knew it would result in evil. The Problem is thus answered by being evaded through speculation.
Or, I suppose, it would be possible to maintain that God, though Good, is indifferent to his creation. He is a kind of divine version of Tom Lehrer's Werner von Braun ("once the rockets go up, who cares where they come down?"). Or, that he cannot intervene, in which case he is a kind of lesser God.
Not satisfying at all, are they?
I suppose one possible "answer" to the question would be that of the jovial Mr. Robertson. An omnipotent, all-knowing God, very capable of intervening in his creation, cannot be blamed for what happens to those who strike deals with the devil--they are themselves to blame for what happens to them, or at best (?) the devil is to blame (though the devil, one would think, if he is as traditionally described, would be content with tormenting the souls of the Haitians throughout eternity; visiting an earthquake upon them in addition to eternal torment would seem something of a breach of contract).
Presumably, then, Robertson's response would be that God does not create evil--his erring human creations do, with or without the assistance of another of God's creations, the devil, who is very able but also, of course, doomed to failure, because God is good, not evil, and God trumps Satan.
God, therefore, has granted us free will, and if we misuse it that is not God's fault. We create evil in the world, or evil is the result of the acts of another (but to God necessarily lesser) power.
Then again, it must be noted that except perhaps in the increasingly unusual mind of Mr. Robertson, this was a natural disaster--it was not man-made, and need not have been Satan-made. The result is terrible, but it was not intended, by anyone. So, it cannot propertly be said to be evil, or the result of evil intent.
I've always found such answers (and every answer to the Problem of which I'm aware) to be unsatisfactory. If we assume that God has the power to intervene in creation, the question is not merely whether he is the cause of evil/suffering, but if he is not the cause why he allows it to happen when he could prevent it. Let's say that certain Haitians made a deal with the devil more than two hundered years ago. God, presumably, was well aware of the fact that this would (somehow) result in this earthquake, and could have prevented it, avoiding the death and suffering which have resulted. He allowed it to occur, however. Or, God well knew that the natural disaster would occur, could have prevented it but did not do so.
What are we to conclude? That he so valued the free will of the Haitians who stuck the deal with the devil (and the free will of humans generally if that is the true cause of evil) that he feels bound to allow the resulting evil to take place? Why, then, does he value free will to such an extent as to have allowed it to cause such pain and death throughout history? If the devil is the cause of evil, why grant him full reign? Why does God feel that nature must take its course even if that course causes terrible pain and the death of thousands?
The answers to the Problem usually given, then, are not answers at all, as they simply create more questions, which ultimately lead to a single question: "Why?" And the response to that question is an appeal to mystery, or the fact that we cannot know; or perhaps a response that everything is ultimately for the good, but we can't know how because only God can, and such. Or perhaps that God loves us so much that he granted us free will even though he knew it would result in evil. The Problem is thus answered by being evaded through speculation.
Or, I suppose, it would be possible to maintain that God, though Good, is indifferent to his creation. He is a kind of divine version of Tom Lehrer's Werner von Braun ("once the rockets go up, who cares where they come down?"). Or, that he cannot intervene, in which case he is a kind of lesser God.
Not satisfying at all, are they?
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