Ciceronian Review

Bah Be-Bop

One of the bad things about Christmas is what it does to the radio, and music generally.  Lovely songs repeated so often they become lothsome, and lothsome arrangments of mediocre songs until one wishes for a temporary selective deafness.  Of course, when I was young I loved the loot; and loot appears still to be the primary purpose of Christmas.  As an adult, I don't get much in the way of loot.  Dog, on the other hand, gets plenty.  Not only bones, but a trip to the doggie spa (it is a ranchette where he hangs around other dogs, horses, and generally rolls around in as much dirt as can be found).  Still, the holiday is increasingly sad, and it is mainly the horrible musical assault involved.  Silent Night is a beautiful song, but it is so hard to listen to now. 

In a shocking turn, the oppressed religious (yep, the 60% or 70% who claim to be Christians) are feeling the need to reclaim their festival.  Nothing like inane claims to keep things interesting.  In addition to the historical problems with taking Christmas to be a major religious event (starting with the fact that Jesus wasn't born in the winter, the festival is plainly pagan in origin, etc.), there is a question about why it is worth celebrating at all.  Nothing miraculous about the birth -- sure,  the announcement to Mary  and the conception offer themselves as miracles, or perhaps one could reasonably celebrate the performance of miracles (I'm all for food holidays -- 'water into wine' day would a delight), or the death and resurrection, or the ascent to heaven.  These all have some genuine religious significance.  But popping out of mom?  Uhm, nothing special there.  But reason has little to do with it.  Which is why Unamuno remains among my favorite religious thinkers. 

I'm off for a while, vacating in a warmer clime.

The Sky Says

Isn't this a great night sky? 

It's Just Like The New Nepotism

At Thoughts, Arguments & Rants there is a long thread on selection of articles for Phil. Persp., which is an invitation only journal. Some people seem to object to the idea that the way a journal should select articles is for the editor to check with his buddies and publish their recommendations. Others think all that matters is the quality of the product. Interestingly, none of the editors have found time to explain how they selected who they selected for publication. It is shocking how thick-witted academics can be about their own worlds. Let’s hand out scarce resources based on secret criteria to our friends and neighbors….. In fact, let’s run all of as much of the government as we can on these general principles. 

 Publications are a scarce resource. They have positive correlation with a number of other benefits, like invitations to conferences and promotions. There are a number of easily available alternative means of distribution. There is no reason to think there will be any long term loss if selection is made more transparent. 

Outing Lincoln

In yesterday's NY Times, there was a long discussion of a new book about Lincoln.  The thesis of the book is that Lincoln was gay.  At the end of the article there are these two paragraphs:

Still, if Lincoln was gay, how did it affect his presidency? Ms. Baker said that his outsider status would explain his independence and his ability to take anti-Establishment positions like the issuing of the Emancipation Proclamation. As a homosexual, she said, "he would be on the margins of tradition."

"He is willing to be independent, to do what is right," she said. "It is invested in his soul, in his psyche and in his behavior."

Well, that explains Roy Cohn.

 

Where The Old Shouldn't Swim

The Utah Court of Appeals has affirmed dismissal of a lawsuit against some legislators.  The reasoning is nothing special, and the outcome is no surprise.  But the underlying facts provide a nice guide to political life in Zion.  From the decision:

¶2 Plaintiff was employed by the Utah Department of Health (Department) as a general sanitation and safety manager for thirteen years.  In mid-2001, Plaintiff's supervisor assigned him to conduct training sessions on State administrative rules regarding public swimming pool sanitation and safety with the staff of the St. George and Cedar City local health departments. After conducting these training sessions, Plaintiff reported to his supervisor that these two local health departments were not enforcing Utah Administrative Code R392-302 regarding the design, construction, and operation of public swimming pools.

¶3 After Plaintiff reported his findings to his supervisor, a constituent of the Legislative Defendants complained to them that she believed her swimming pool in a retirement community should be exempt from administrative rules regulating public swimming pools.  Plaintiff spoke with the Legislative Defendants about the requirements of the administrative rules.  In their conversation, the Legislative Defendants insisted that Plaintiff exempt pools operated by retirement communities in their geographic area from portions of the State rules.  When Plaintiff told them that he could not exempt these types of pools, the Legislative Defendants told Plaintiff that if he did not comply with their wishes, they would deal with the issue in their own way, through legislative action.

¶4 During the Utah Legislature's next general session, the Joint Executive Appropriations Committee, which was co-chaired by Senator Hickman, voted to cut $115,700.00 from the Department's budget.  The committee action did not designate from which area of the Department's budget the money was to be taken, nor did it target any particular positions to be eliminated.  The appropriation committee's recommendations were later passed by both houses of the Utah Legislature as part of Senate Bill 1.⁽²⁾

¶5 According to Plaintiff's complaint, sometime after the budget reduction, Senator Hickman made a real or veiled threat to Department Executive Director Rod Betit, that if he did not implement the budget cuts to eliminate Plaintiff's position, Senator Hickman would push for future cuts in the Department's budget appropriations.  Subsequently, Plaintiff's position was eliminated and his employment terminated.  Plaintiff unsuccessfully appealed his termination to the Department head.

So, a state employee whose job it is to ensure safety of public swimming pools loses his job for doing his job.  No, don't change the law, just fire the foolish folk who enforce it. I particularly like that the source of the complaint was the owner of a pool for the retired.

Natural Law (And No Thomas)

Solum and Balkin have offered interesting commentary on natural law and judicial opinions (along with related comments from Weatherson, Buck, and on and on – about Thomas often). But Solum and Balkin are onto an important topic which is quite distinct from Thomas’ jurisprudence. Natural law does not rise and fall with Thomas (well, certainly not that Thomas), and its place in both US constitutional theory and generally liberal democratic political theory is, I think, a bit different from what Solum and Balkin claim.

Both Solum and Balkin are of the view that whether one holds a natural law theory is largely irrelevant to assessment of judicial performance and largely irrelevant to judicial interpretive theory. (Well, maybe not; on re-reading I am not sure Solum has expressed a view on this point. The reference to Balkin suggests a possibility, but it is not part of what Larry says.) For example, Balkin asserts that one can be both a legal realist and natural law theorist. If the standard here is whether there is an obvious logical contradiction between the two, Balkin may be right. But it is hard to see how anyone could sincerely hold such views. A legal realist, in the end, thinks there is no normative theory for decision-making. Decision-making always in fact is governed by sociological factors, hence normative theories cannot have any effect and cannot matter. But if normative theory has no practical import, it cannot really be a normative theory as one is already committed to the view that such theories do not guide action. One might nevertheless believe both, but the concoction is quite implausible, if not ridiculous.

More plausibly, one might hold to both natural law theory and a formalist approach to legal and constitutional interpretation. Here too, I think, there are severe problems for the project of making the views consistent. One might take natural law theory to be a moral theory. In that sense, the theory is about the nature of moral values, one is committed to a notion that there is a kind of moral order discernible from the world. Normally, the moral order is grasped by light of reason without aid of revelation, but I doubt that is a necessary feature of a natural law theory. The crucial parts have to do with moral values independent of human social activity, immanent as it were in the order of nature. In this sense, there is no pressing conflict between formalist legal interpretation and natural law theory, because this sense of natural law can be squared with a positivist account of law, as can (almost) any theory about the nature or source of moral value. There are a number of ways of incorporating moral reasoning (and moral sources) into a theory of judicial interpretation, but is a process that need not reduce judicial interpretation into a duty to instantiate a particular moral order. (To be a bit fairer, I can’t think of any convincing reasons for so thinking, and believe it is a mistake to do so, so I won’t attribute that mistake to natural law theory.) We know Justice Thomas has to be committed to natural law of this general sort because we know he is a faithful member of the Catholic Church.

There is another sense of natural law theory that has more judicial bite, which ties assertions of authority or legitimacy of law to reflection of natural law. If this kind of view can be made consistent with formalist interpretation, it is only in a narrow range of circumstances. At the outset, however, this sense of natural law poses a genuine challenge to a formalist approach to legal interpretation. The formalist approach is largely an intra-legal approach to interpretive problems. The idea is to rely on resources which treat the statutory (I have never really figured out how a formalist approaches common law questions in ways which are distinctly formalist) and (US) constitutional questions. There are a number of arguments and ways pf presenting the arguments, but I intend to offer only one sketch. A supposition of formalist approaches is that what the judge does is to interpret the law within a framework which preserves, to the extent it exists, the authority of the law at issue. A formalist might intend to set to one side the question of authority of law, but I don’t think that could really work, particularly for one who believes there are moral constraints as entailed by a natural law theory. So the judge must be aiming at, among other things, an interpretation of law which is valid (and so within the authority of law). (One response is to hold to a sharp division between legal and moral duties. That risks (at about 1) violation of one or the other duty. It is plain that the moral duty will supersede for the natural law theorist, so the move accomplishes nothing in the end.) This will (very likely) lead to a requirement to ultimately ground the legal provisions in the substantive claims of the natural law theory. Natural rights constrain legal interpretation. That puts a formalist into an uncomfortable position because it is difficult to see anything formalist about this last resort, and it is difficult how to see how the formalist/natural lawyer avoids hypocrisy.

To return to Balkin, this second concoction does matter to an assessment of judicial success or competency. This second group of natural lawyers end up either engaged in the hypocrisy of Government House ethics or they are engaged in a personal project inconsistent with the nature of the position of judge. Both horns have devastating effects on the authority of law.

It may be that one dispenses with the notion of authority of law as used here. I am unsure if there is a case for formalism without it, however.

Reasons and Justice Thomas

Larry Solum has a very nice post on public reasoning in connection with Justice Thomas.  Solum's account is cogent.  (Solum does not take sides in the assessment of Thomas.)  Whether Thomas really meets the standard is also not on the table at Legal Theory.  The standards are, and it makes for good reading. 

   

Reid's Right

Sen. Reid has expressed the view that Justice Thomas is not up to his job. Naturally, Thomas has supporters and they take exception. Unfortunately, Reid is right. Thomas is not up o his job. The standard here is not whether Clarence Thomas gets himself arrested or indicted. It is not whether he publishes majority opinions from time to time. W.O. Douglas did that, and he still did a poor job as justice. The standard is not whether Thomas is a great writer – there aren’t any of those on the Supreme Court, and it is far from clear that good writing is any real help to the job once one manages to write moderately clearly. Given the number of helpers the justices have, it would take real dedication to produce genuinely bad writing. The standard is an intellectual standard, and Thomas does not meet it. Every term Thomas offers up views that are ridiculous, ridiculous in the highly technical sense of have no grounding in history (legal or social), little connection to established law, and animated by foolish policy preferences, ill-disguised. A guy who thinks that recipients of parking tickets are entitled to more due process protection than those held in prison without term is not a good justice. It is rather unlikely he ever will be. 

Ascherson Armed and Unarmed

In the December 2 issue of LRB there is a longish review by Neal Acherson of the re-issue of Deutscher’s three volume biography of Trotsky. I read the biography about thirty years ago. Trotsky is a very interesting figure, remarkable in a number of ways, all of which are discussed in the review. The review is a lovely bit of work. It is fair to the books and to their subject, intelligent, informed, well-written. Most of the review, as it should, concerns assessing the achievements and person of the subject of the biography. There are plenty of interesting aspects to Trotsky’s life and work.

Late in the review, there is this paragraph:

What remain of him [Trotsky]? The books, as an incomparable witness to his times. But no Soviet Union, either ‘deformed’ or restored to ‘proletarian democracy’. The Bolshevik Revolution, which he led and rescued from its enemies, no longer feels like the major event of the 20^th century. [Okay, but attend:] The weighing of ends and against means, future against present, which allowed Trotsky to order so many innocent deaths is now utterly ‘unacceptable’. So are some of Deutscher’s own judgments. His only criticism of the murder of the tsar and his family is that ‘the world was deprived of the spectacle of a most dramatic trial.’

 The last half of the paragraph is quite strange. The weighing of means and ends is unacceptable to whom? That will be news to Judge Posner, who last week argued on exactly such grounds for preventive war. And it is means and ends that is the hope of justifying such wars, whether in Serbia/Croatia or Iraq. The means and ends are what the current administration is about. But the idea is, I think, that most folks are more sanguine about the real costs of social warfare and the difficulty of prediction. The sentence is mellifluous, so let it go even though its terms seem not right. What follows is just weird. Of all the tens of thousands killed in the civil war, the tens of thousands murdered, why would one care particularly about the tsar and his family? Some great loss of humanity there? Neither the tsar nor the members of his family had anything much to recommend them – pretty dull, if not dim-witted, without any accomplishments of any kind. They did little and it cost a great deal for them to do little. If it is murder that calls for judgment, why would that be the set of murders one cared particularly about? Why not the sailors at Kronstadt, who could at least be said to have had some social principles worth considering (and who could claim to have made both contribution to and sacrifice for the country)? I wonder if Ascherson really does think that the murder of the tsar and his family needs some special attention, and why that would be. Or is it that there is some allure for us still in the images of royalty? Something more tragic in their loss than in the tens of thousands of others murdered?

Office Life

Academics do not have a holiday office party, not so far as I can tell.  It is something for the professional and office classes I suspect.  Today was ours.  Goodbye to the dear departed and about to be departed (all something close but not quite to dead) and hello, oh aren't we lucky all in all to the nearly arrived and just promoted.  It is a bit peculiar, and can be trying as one spends a few intoxicated hours with people some of whom are plainly vile. which is to say they are your colleagues.  (There is no news in any of this -- people who claim the office (or department, for that matter) are all in ecstasy to work together are liars or demented).  But it was nice enough and nicer than my description to this point would suggest.  For one, all are dressed enough to be quite nice to look at, and, it being a vaguely religious holiday, everyone makes efforts to be kind and generous.  (Sort of like poor but honest, no one knows anyone who is kind and cheap.)  So, what happens is some drinking (but not for the faithful follows of Smith, who consume instead varing fruit juices) and chatting,  followed by eating and a couple of speeches, as to which one hopes comedy, and then home or to some other party.  And a short conversation about curiosities of the Bible: the absence of condemnation of abortion in the Bible (Christian politics notwithstanding) and the remarkable concern by God with ham and cheese sandwiches, the fabrics of one's clothes, and the ever-blessed shrimp whom we must never eat. 

But Rumsfield wisely notes that his boat is not bigger than it is, or was that Russell?  Well, it is a holiday period, so there is no reason to have concerns unless the credit card is running short.

I'm off.  Some reorganizing and updating of the site over the weekend.