Law and the Conditions of Freedom – II

One of the great revelations I had while taking Professor Hurst’s course was a glimpse of how American law really functioned. It was, in some respects, not an entirely new perspective, since my first year Contracts course was taught by a group of scholars strongly committed to a sociological approach (so much so, that I never learned basic black letter terms like “offer” and “acceptance” until after graduation when I took a commercial course to prepare for a bar exam). But even in those courses, like most other academic ones in law school, focused on supreme and appellate court opinions – in other words, what the judges said the law was in the mad dance to weave their rationales into those articulated by other judges in previous court opinions.

Professor Hurst also had us look at court opinions, but his focus was on legislation and administrative regulations, and how they were written, interpreted, and enforced. He had us start with the radical reformation of the law that occurred in the nineteenth and eary twentieth centuries, when people struggled with de facto social and economic laws and the difficulty of fitting English common law principles to the new situations presented in the young United States.

What was most striking was the context in which the famous (to lawyers) Footnote Four appeared in the United States v. Carolene Products Company, 304 U.S. 144 (1938). That case dealt with a federal law that prohibited filled milk (skimmed milk compounded with any fat or oil other than milk fat, so as to resemble milk or cream) from being shipped in interstate commerce. The issue was whether a doctrine known as substantive due process would continue to be used to thwart government regulation of business activities. In a great reversal, the Court decided that such legislation would be considered presumptively constitutional if there was any rational basis for it – a decision that removed some of the major obstacles to New Deal legislation. Footnote four, however, carved out an exception to the new rule that, in effect, created something quite new – the notion that substantive due process was a principle that would be used to protect the interests of “discrete and insular minorities” because a majority-ruled legislature could act out of prejudice or ignorance of such interests. What it came to mean, as developed in later cases, was that regulation adversely impacting such minority interests would be subject to higher judicial scrutiny. [Historical note, that higher test, later known as “strict scrutiny,” was first applied in the dissenting opinion of Justice Black in Korematsu v. United States, 323 U.S. 214 (1944), in which the majority infamously upheld the constitutionality of the internment of Japanese-Americans during World War II.] Strict scrutiny was later seen to be implicated as follows:

It arises in two basic contexts: when a "fundamental" constitutional right is infringed, particularly those listed in the Bill of Rights; or when the government action involves the use of a "suspect classification" such as race or national origin that may render it void under the Equal Protection Clause. These are the two applications that were anticipated in footnote 4 to United States v. Carolene Products.

(Strict Scrutiny, Wiki).

Most of us who went to law school at Wisconsin back in the late1970’s and 1980’s came thinking of American law in terms of the civil rights movement and civil liberties. The Warren Court was still very much in our consciousness, and although personal politics and philosophies were not necessarily in agreement with it, and our career plans may have involved work in other areas of the law, it still made a huge impression as to grand scope of human conduct and societal concerns that law might address.

Personally, I was especially enamored with issues concerning civil liberties, since I had just come from working to help ex-prisoners and mental patients transition into the private work force in Winnebago and hoped to return to help them with my legal skills (as I did, in fact, for a few years – return, that is, not sure that I really helped much). But whatever romantic notions I had about the Bill of Rights and individual freedom were, if not blown away, replaced by the much fuller, richer view of American law that Professor Hurst gave me and which I later had the good fortune to see in practice working for a judge with a similar perspective.

What I discovered was that freedom, from the beginning, was founded in economic principles and actions. While one can choose to think in the abstract about being “free” in terms of personal liberties, for at least the male, non-slave population of the United States, freedom meant being free to work, earn money or goods, and buy and sell property without the kind of legal and social restrictions found elsewhere (i.e. Europe and areas under its control).

Freedom, in this sense, did not mean doing whatever the heck one wanted, even though our literature and later cinema exalted rugged individualism and self-reliance. Having real, effective, economic freedom meant having a set of expectations and relations that one could rely on, as well as the absence of certain kinds of constraints.

Let me try to give a simple example. Say person A buys or stakes out a homestead along a creek or river. Then B and C come along acquiring land up and down stream. How does one decide how to allocate use of the water and water flow, for irrigation, power, or whatever? Perhaps in England the law might provide that person A, who was there first, has first and exclusive rights, but in developing America, the kind of privileges afforded the existing gentry did not make much economic sense. So, the whole notion of what ownership means, which bundle of rights goes with the land and land adjacent to water (and the mineral rights below and the air above), had to be reformulated, by courts and legislatures.

This was not just, for me, a matter of historical record (though I found the developments that followed – the rise of the corporation, labor unions, health and welfare regulations, government bureaucracies, and the vast, hidden allocation of resources by increasingly complex taxation schemes -- fascinating in their own right). It was a realization that the things that count the most in everyday life, at least in terms of physical survival and our place in society, involved the protection of freedoms that are far more complex than notions of personal autonomy. In fact, personal autonomy alone does not get one anywhere – one must be free to give and receive, be obliged and rely on others’ obligations, to have any measure of self-control and direction, let alone personal fulfillment.

From a more academic point of view, this meant the following:

Hurst's focus on the multiple roles of law in society was key to his historical sociology and the point at which his work gets most interesting. In contrast to interpretive critiques that reduced Hurst's conception of law's function to a simple economic instrumentalism or middle-class values consensus, Hurst explicitly and repeatedly recognized (and called for further research into) four broad and salient combinations of value and function that marked "the distinctive roles of law in United States history": violence/force, liberal constitutionalism, procedural rationality, and resource allocation. Those four roles were the basis of Hurst's historical-sociological definition of law: "Law has meant organization for making and implementing choices among scarce sources of human satisfaction—organization marked (1) by successful assertion of a legitimate monopoly of violence, (2) by constitutionally ordered power, (3) by procedures which emphasize adherence to legitimated form and to continual cross-check of generals and particulars, and (4) by its regular use to allocate resources to affect conditions of life in society."

William J. Novak, Law, Capitalism, and the Liberal State: The Historical Sociology of James Willard Hurst, Law and History Review, Vol. 18, No. 1, at 23.

I’ll have more to say about this in time. But, at the risk of beating a dead horse, I want to say that I will be considering this perspective from Hurst in contrast to that of Rowan Williams, which seems so sterile and arid in comparison because it ignores the social context and nature of American notions of freedom in general and, in particular, with regard to how our law defines individual rights (which, I think, in turn impacts how Williams considers the role secular government and law should play in governing matters of individual choice, including the practice of religion).

More on that later, but for now, Williams again, for a reminder of his views of Western culture supposedly posits about freedom:

1. A doctrine about human rights. …. the assumption that human beings were born with entitlements to certain kinds of freedom, more and more envisaged as freedom of access to what would make each human being content with their situation and would permit no potential in human beings to go without being developed…. this model of individuals as endowed with the right to win control of their environment as far as possible.

2. The assumption that freedom understood as the absolute liberty to choose between alternatives is an unqualified good.

3. Democracy. If no individual or group or class has the right to define what is going to be possible for others, the organisation of social life has to be by means if the widest possible consultation about people's preferences, with the option of changing those who administer the law and policy of society when change is desired.

4. The distinction between public and private. This means encouraging people to think in terms of a sort of contract by which the greatest benefit to the greatest number is assured by majority decisions, and individuals accept that their specific choices may rightly be limited when they have possible consequences for others that would limit the liberty of those others. But this is offset by the agreement of public democratic authority to allow an almost unqualified freedom in those areas where there are no obvious public consequences for choices. Modern democracy brings with it a pluralist assumption about personal morality.

5. The character of modern European art and literary culture. This is something that focuses intensely on the complexities of the individual's awareness and emotion. It appears in musical Romanticism, in a variety of modernist movements in visual art, but above all in European (and American or Australian) drama and fiction. What people look at and think about when they read novels or watch plays and films is the records of specific individuals making their choices, experiencing the effect of their choices, battling often to secure the right to choose and so on.

Five characteristics of European-American culture, extracted from Rowan Williams, Europe, Faith and Culture (January 2008).

Natalia Bessmertnova R.I.P.

Natalia Bessmertnova, 19 July 1941 – 19 February 2008

Law and the Conditions of Freedom

J. Willard Hurst was perhaps the most extraordinary scholar and teacher I have ever known. He was a gentleman -- soft-spoken, thoughtful, able to command quiet and attention from an entire lecture hall of students without ever raising his voice, calling on each of us as "Miss" or "Mr." but in a tone as if he were inviting us to chat with an ordinary person over tea, rather than asking us to answer questions posed by one of the finest legal minds we could ever hope to encounter.

I have been thinking of him a lot lately. He pioneered not just a theory or an approach to study but an entire discipline -- what some have described as historical sociology. Whatever one calls it, he revolutionized how legal history is conceived and, for many, taught. Instead of looking at what legal philosophers and jurists said the law was or should be, Hurst looked at would the law actually did, how the parties acted and responded in the context of their times.

This perspective revealed much about the history of the United States in the nineteenth and early twentieth centuries, not just in terms of the law -- the courts and the legislatures -- but the social, political, and economic fabric of society. Legal history revealed how people staked out and settled land, built roads, shared water and other resources. European legal concepts were transplanted and modified according to local conditions and pressing economic needs. American law was made by and helped shaped the new social and physical environment in which it grew.

I'll have more to say later on about how and why "freedom" as it evolved in American law was never, even or especially in the beginning, about untrammeled individual action but rather was about both flexibility and constraints in social and economic structures for the use and benefit of all. For now, however, let me just give this glimpse of how Hurst approached his subject.

From Law and the Conditions of Freedom, by J. Willard Hurst

The preamble of the Pike Creek Claimants Union reflects in miniature two working principles by which we organized the relations of legal order and social order in the nineteenth-century United States. I speak particularly of "working" principles, principles defined and expressed primarily by action. It is in this aspect that the Pike Creek document is most relevant to our purpose. For these essays seek to understand the law not so much as it may appear to philosophers, but more as it had meaning for workaday people and was shaped by them to their wants and vision. Of course, this is not the only viewpoint from which to appraise the legal order. Nor is law that is formed largely by the imperatives of action necessarily the best law. We are simply trying one angle of vision provided by history for the distinctive reality it may disclose. Whatever its limitations, it is a point of view warranted by the central principle of our legal order, that law exists for the benefit of people and not people for the benefit of law. Such a legal order cannot in the long run be true to itself and at the same time be better than the values or vision of its beneficiaries. Moreover emphasis on "working" principles seems peculiarly in point when we are trying to understand ourselves. Our history amply validates Tocqueville's observation that we have been a people not given to general theory; one usually senses that he is closer to apprehending the decisive faiths and beliefs of our nineteenth-century ancestors when he reads these out of what they did and said as they acted, rather than out of their self-conscious philosophizing.

Law and the Conditions of Freedom in the Nineteenth- Century United States. James Willard Hurst - author. Publisher: University of Wisconsin Press. Place of Publication: Madison. Publication Year: 1956. Page Number: 5. From text at www.questia.com

Breakfast at Tiffany's

I am a great fan of classic movies, and this is one of my favorites. I first saw it, as I saw many, curled up at home watching WGN t.v. in Chicago, long before the days of video, dvds, or even cable, when one had to watch movies as they aired, snipped and full of commercials (anyone remember EMPIRE?). Last time it was with my daughter, also for some reason watching t.v. late at night. I wondered at the time what she would think of Holly Golightly, the character who has been described by Matthew Cash as "a woman who makes a holiday of life, but treads through it lightly."

Late last night the image of Holly came to me all of a sudden, perhaps the way it did to Joe Bell, the bartender, in Capote's story. I was thinking about Rowan Williams and my own youthful descent into the desolation of European literature and philosophy. While I doubt I fell into that pit with anything like the knowledge and intellect of someone like Williams, descend I did, going from Camus and Sartre in high school French classes (with M. Sheridan's illustrative bounding around the room screeching and pointing, "la fenêtre ... la table" etc. "EXISTE!"), my senior European History papers on Dostoevesky's Brothers Karamazov and Nietzche's conception of Good and Evil (for which I read all I could find translated and written by Walter Kaufmann), not to mention college years with the likes of Foucault, Derrida, etal., and the law school years studying how law can and cannot reflect and shape culture and behavior. While I'm sure I did not understand even half of what I read (and now recall even less), I did grasp desolation, the loss of certainty, and the fear of relativism of all kinds.

What I also came to learn in the years following is that most people have not read these kinds of writings, and even those who have, go along in life pretty much the same way as if they had not. While there is something to be said for reading for self-understanding and learning what one can about one's culture (high as well as the rest) and that of others, the fact of the matter is that most people go ahead and try to live, love when they can, and do their best to get along with friends, family, neighbors, and even strangers, without worrying about meaning or coherency or the strength of the meta-narratives that bind or loose their cultures.

So what does any of this have to do with Holly Golightly? Well, who better to represent Western decadence and "self-creation" as Williams sees it. Capote tells us that Holly says, "...home is where you feel at home. I'm still looking," and "I'll never get used to anything. Anybody that does, they might as well be dead." Williams speaks of the "homeless soul" of European culture and its religion, in which being a Christian has long been "defined as someone always refusing to settle down."

With all due respect to Capote's original vision of Holly, with its bitter satire and more darkly comic shading, it is the Holly created by Audrey Hepburn and Blake Edwards, who ends up clutching Cat in the rain with Paul (George Peppard), that most people know and remember. Hollywood and Mancini bring her, if not home, at least to a kind of belonging that she never knew before, a belonging that requires her to save Cat and risk all the harm and hurt that comes daring to love and take responsibility for caring for another.

Sentimental? yes. Materialistic? Maybe. How does one describe love shining in on a morning standing on Fifth Avenue and gazing in the window at Tiffany's? Should one fall prey to the dreamy strains of Moon River, the designer clothes and hats, and the luminous eyes and lovely voice of Audrey Hepburn that clothe an odd, arch tale of a young woman who escapes from a poor, rural childhood that leaves her orphaned and married young, and takes her to the big city, where she prostitutes herself and pretends that it is all just a romantic adventure?

For better or for worse, the spell works for most people. I would not want to claim the movie is the hallmark of Western civilization or even the best cinema, but I think there is something about it that holds up against the "red meanies." As in many classic American tales, there is no solace or salvation to be found in rural or small town life, where Holly's real problems began when she was orphaned as a child, left to forage for food on her own, and finally taken in marriage at age 14. Nor does sophisticated city life offer much better, just moving scenes of parties and noise, full of plots and dreams of finding men and money that will keep Holly moving but not tie her down or try to tame the wild, restless thing inside her.

In the end it all comes down to just a woman, a man, and a cat standing in an alley, soaking wet in the rain. That's all. All it ever is. People. Together. For awhile, at least. And then there is "The End" with screen credits rolling in the background.

The crazy thing about Americans is that we keep dreaming, despite all odds, despite constantly having to re-invent ourselves and forgetting what we did yesterday. Sometimes the dreams turn to nightmares, but we keep picking ourselves up to start over again, holding the dirt in our hands and facing the future.

Do I want my daughter to live a life like Holly's? Of course not. But I'd rather she had something of her spirit, her quest for freedom, and her unwillingness to sell her soul to the first man who comes along rather than live as most women have long had to live in traditional cultures throughout the world. There are worse things than trying to steer one's way through the hazards of choice or uncertainty -- like being imprisoned in traditions or circumstances that outsiders see as meaningful, coherent, and life-sustaining when they are quite the opposite. Sometimes escape is the only way to reclaim life, and a society that offers few if any opportunities for doing so can entomb many. In the end, however, escape is not enough. The touch of another and the tremor of divinity in that touch, the sense of true belonging to and for one another, is what finally brings us all home.


Above: Movie theatre poster advertisement for Breakfast at Tiffany's © 1961 Paramount Picturesm image from wiki

Rowan and his shadow

Rowan Williams' Royal Courts Lecture and the BBC4 interview on sharia law, which preceded it, really threw me for some reason. I did my best to critique them here (links at sidebar), but I felt like I was missing someone or something critical. Well, it turns out I did.

His name is Phillip Bobbitt, professor of constitutional law, formerly at the University of Texas Law School, currently at Columbia University Law School, former member of the Modern History faculty at Oxford in the 1980's and the War Studies Department of King's College London from 1994-1997, and long-time counsel and defense consultant for the U.S. government, including the Clinton Administration, in which he served as Director for Intelligence, Senior Director for Critical Infrastructure and Senior Director for Strategic Planning at the National Security Council. Bobbitt is also the author of the apocalyptic The Shield of Achilles: War, Peace and the Course of History (Knopf, 2002) and the soon to be released, Terror and Consent: The Wars of the Twenty-First Century (Knopf, 2008).

There is nothing new or secret about Bobbitt's influence on Rowan Williams. Bobbitt's thesis concerning the collapse of the nation-state and rise of what he calls the "market state" was the focus of the first major speech Williams gave after becoming Archbishop -- the Richard Dimbleby Lecture of 2002. He was also mentioned by name recently in the Archbishop's January 2008 Liverpool lecture, "Europe, Faith and Culture."

For those paying close attention, Rowan William's remarks concerning the possibility of "supplementary jurisdiction" based on sharia law within the British judicial system, should have come as no surprise in light of the following article written by Bobbitt in 2004:

In earlier essays, I have speculated that the nation state, whose legitimacy is based on its undertaking to improve the material well-being of its people through law, would be superseded by a market state, which claimed power on the basis that it would maximise the opportunities of societies and individuals. It would do so less through law and regulation and more through the use of market incentives and private action. This evolution has already begun.

Market states would adopt techniques such as replacing conscription with an all-volunteer force; deregulating not just industrial practices, but women's reproduction; auctioning off the electronic spectrum; reducing welfare and unemployment benefits and replacing them with job training programmes aimed at re-entry into the labour market; and introducing vouchers into public school choice. Above all, the hallmark of the market state is the use of incentives to induce voluntary compliance, as opposed to the use of legal regulation to enforce compliance.

In international relations, I have imagined that the creation of "umbrella states" would reflect this general movement in the change of constitutional orders. An umbrella state is a free-trade and/or defence zone that allows for a common legal jurisdiction on some, but not all, constitutive issues. Societies too small to be viable as separate states can shelter within such umbrellas, retaining for themselves control over essentially cultural matters - education, language, religion, gender and sexual relations. Such umbrellas offer a constitutional mechanism for ameliorating one of the most significant shortcomings of the market state, its indifference to community and to culture. Under a multicultural umbrella, many subcultures can dwell, maximising the advantages of larger markets and revenue bases while retaining the ability to develop different legal regimes within each specific domain. These subcultures will not be states, at least as we have understood the term. Let us call them "provinces". These may include provinces where feminists or fundamentalist Christians or ethnic Chinese congregate, all within a larger sheltering area of trade and defence.

(from "Better than empire," March 14, 2004, Financial Times).

Speaking of supplemental jurisdictional schemes for family and property disputes in 2008, Rowan Williams said:

It is uncomfortably true that this introduces into our thinking about law what some would see as a 'market' element, a competition for loyalty as Shachar admits. But if what we want socially is a pattern of relations in which a plurality of divers and overlapping affiliations work for a common good, and in which groups of serious and profound conviction are not systematically faced with the stark alternatives of cultural loyalty or state loyalty, it seems unavoidable.

(Royal Courts lecture, 2/07/08).

The point is not the similarity in conception about legal schemes (in fact Williams draws from different sources, including Islamic jurists, for his Royal Courts lecture), but rather the conviction that culture and morality needs to be derived from local, quite possibly non-secular, institutions. And this, in turn, comes from what appears to be a wholesale embrace of Bobbitt's theory of the "market state":

This reading of our present situation is spelled out in great detail by the American strategist and historian Philip Bobbitt. He sees our present context as one where the nation state's inability to deliver in the terms we have become used to, its inability to meet the expectations we now bring, has led to a shift into a new political mode, the market state, in which the function of government - and the thing that makes government worth obeying is to clear a space for individuals or groups to do their own negotiating, to secure the best deal or the best value for money in pursuing what they want. It involves deregulation; the 'franchising' of various sorts of provision - from private prisons to private pensions - and the withdrawal of the state from many of those areas where it used to bring some kind of moral pressure to bear. It means that government is free to encourage enterprise but not to protect against risk; to try and increase the literal and metaphorical purchasing power of citizens, but not to take for granted anything much in the way of agreement about common goals or social good.
. . . .
So socially and culturally, the last couple of decades have been a period in which physical mobility and the homogenising of the entertainment media have weakened some kinds of local solidarity in speech and habit; and the social bonds that once existed in the territory between individual and state have been seriously eroded - voluntary associations of different kinds, churches, the family itself. There may be more for them to do, but the volunteer base is seriously eroded. It isn't surprising, then, if the unspoken model of political expectation now is increasingly the consumerist one: the individual confronts the state, asking for what is promised - maximal choice, purchasing power to determine a lifestyle. It isn't surprising if the attitude of many to national and local elections is apathy, with a disturbingly high percentage of younger people failing to vote.
. . . .
So the problem of the market state looks rather like this. By pushing politics towards a consumerist model, with the state as the guarantor of 'purchasing power', it raises short-term expectations. By raising short-term expectations, it invites instability, reactive administration, rule by opinion poll and pressure. To facilitate some of its goals and to avoid chaos, government inevitably relies more on centralised managerial authority. So there will be a dangerous tension between excessive government and the paralysis that can result from trying to respond adequately to consumer demand. To put it in another way, government and culture drift apart: government abandons the attempt to give shape to society.

(Richard Dimbleby Lecture of 2002).

The longing for the supposed coherency of local culture, with its integration of religious beliefs and cultural norms, is further apparent in the January 2008 lecture on "Europe, Faith and Culture" which includes the following:

[W]hat is different about modern Europe and its post-colonial legacy across the Atlantic and elsewhere is the belief that what is most uniquely human is a capacity for 'self-creation' – for the making of choices that will establish a secure place in the world and shape an identity that is not determined from outside, determined by social power that acknowledges no accountability or by doctrines and models that have no public evidence to support them. If an individual decides to allow their identity to be so determined, that is no doubt their business, but it isn't something that anyone can rightly expect public authorities, governments, to support or enforce. Public life organises the aspirations of individuals in such a way that they don't interfere with each other too dramatically, and leaves what is supposed to be a reasonable amount of private space in which various individual preferences can be exercised.

It is this sense that the essence of the human task is defining yourself that is at the heart of the modern European enterprise; and it is what sets it apart from both traditional societies and modern ideologically defined societies. In traditional societies, a human being would be defined in relation to other human beings and their given roles and tasks, and the whole complex of human relations defined in relation to a 'sacred order', the balance of things as defined by the will of God or the gods or the eternal harmony of all beings, the Tao of Chinese philosophy or the logos of the ancient Stoics. Within such a framework, there might well be a strong affirmation of the person's freedom to adopt or reject this or that way of living out the given order in which they existed; but there would be no assumption that each person would have to decide who and what they were and work out that decision more or less from scratch. And insofar as the project of 'self-creation' challenges the priority of an eternal creating purpose outside this universe, it looks as though European modernity is basically hostile to any religious sense of the world and of human destiny.

The lecture goes on with more about self-creation and story-telling, from the standpoint of a distinctively Christian perspective as well as how the struggle for "self-creation" plays out in the history of the European novel.

What probably does not come through in just these few excerpts is the extent of gloom and almost despair about Western civilization and all forms of government that might contain it. Human rights are viewed in terms of a "model of individuals as endowed with the right to win control of their environment as far as possible" (EF&C). "Modern democracy brings with it a pluralist assumption about personal morality." (EF&C). There are "irreversible" changes in our international environment," and the soulless, amoral "market state ... seems here to stay." (RDL).

The style of jeremiad perhaps befits a 21st century Archbishop of Canterbury coming after 9/11/01. But the distortions both he and Bobbitt make in their historical, legal, and sociological analysis are troubling when used as guide for creating, modifying, and/or responding to political and social structures. [For one of many critiques of Bobbitt, see Algorithms of War.] If, in fact, Williams is of a mind to support and, indeed, further entrench, local religious cultures, without regard to national territorial boundaries, and, at the same, resist all efforts to foster, nurture, and sustain larger cultural identities and beliefs, even within existing boundaries, all in the name of resisting the influence of the "market state" and its supposed materialistic, self-centered, individualistic values, then the result may be further fragmentation, isolation, and balkanization of religious and social subcultures.

I think I can understand the greater fear of the influence of the secular state in Europe, where religious beliefs and practices appear to have eroded much further than in the U.S. But the notion I get from reading Williams is that it is the secular state itself and the collapse of the socialist welfare model, which he and Bobbitt see in both Europe and the U.S. , which have caused institutionalized religion to decline. This seems rather far-fetched, at least to the extremes they seem to take it. While Charles Taylor has recently reminded us historians that "secular" has various meanings in Western history, the initial one was the absence of church officials in positions of power and influence in government. "Secular" does not necessarily mean godless in the sense of anti-religion. Instead, it means first and foremost the religionists are not in charge of everyday affairs.

I do not fundamentally disagree with Williams or anyone else who finds contemporary Western culture disturbing in its materialism and consumerism, the economic and political forces exerted by transnational corporations and markets, and the increasing inequality in resources and quality of living throughout the world. Nor do I doubt that religion has a continuing and greater role to play in our communities, as well as our individual lives. But I am fearful of the neoconservative and neoliberal mindset that somehow couples a romantic embrace of non-Western cultures, with their perceived "coherent" social and religious structures, and a desire to avoid imposing Western market structures and secularism on them, with a deconstruction and abandonment of traditional Western liberal values and institutions.

Perhaps I am reading too much into this. Maybe the real need for concern is with Bobbitt's influence on U.S. and British foreign policy, especially with regard to the propagation of further hysteria about the War on Terror. But suddenly I am no longer seeing Rowan Williams as the wonderful, sometimes mystical theologian who recently stumbled upon political theory when confronted with anti-discrimination and blasphemy laws and problems with Muslim immigrants. He has clearly been thinking deeply about how government and the economy works, locally, nationally, and internationally, for some time and sees some kind of role he should play as a religious leader in terms of creating or responding to major structural changes. While that sounds like a proper enterprise for such a great intellect, the engagement of that intellect with the great story of Bobbitt's Long War and the collapse of the nation-state, together with the stories he finds in European art and literature, seems to be taking him further from reality.

While the Archbishop may well feel there is no vital local or national culture, nevertheless, the backlash from many quarters in Britain to his BBC interview on sharia law suggests that it may well be alive and kicking. Maybe the hope for Christianity is not that it dig in its heels in local pockets of hegemony but rather challenge the greed and waste of Western culture and work towards global changes in values, markets, and allocation of resources. While it may be true that the nation-state is not going to save us, under old-style fascist, socialist, or communist systems, neither is the kind of loose federation of cultural "market states" with the U.S. policing terrorists as envisioned by Bobbitt, and with the close-knit family and community structures envisioned by Williams, which somehow will share a concern for "human rights" (well, maybe not "full" rights for women, children, and GLBTs if they "choose" not to have them).

I, for one, am no optimist. I have no faith in the old secular beliefs in progress or modernity. And yet, I wonder if in terms of local human relations, family and social structures, that things are as bad as Rowan Williams makes them out to be. Yes, materialism and self-centeredness is rampant in Western culture, and there is much pain and confusion over divorce and too much sexualization of youth. Yes, there are huge problems with economic structures and government, including Western so-called democracies. But the underlying problem is what it has always been -- human nature, a.k.a. Original Sin. I honestly do not think that human beings have begun to behave any worse since the rise of the secular state than they did in the high Middle Ages or whatever time or culture one wants to point to as the epitome of strong religious belief and practices interwoven with social, economic, and political life. There may even be some improvements in terms of the abolition of legal slavery and basic human rights, notwithstanding continued practice of torture, warfare, and genocide. We still do not know when and how the Kingdom of God will be at hand and can do nothing more than continue our best to work for it, day in and day out, including spreading the Good News that there is goodness and justice and light, which has triumphed and will triumph over darkness and evil.

So why not just simply roll up our sleeves and just get to the business of working with each other the best we can? Isn't that what we all need most from Canterbury right now? Do we need to have someone tell us what it means to be a lonely, "homeless" soul of the 21st century and how to start searching for our "stories"? Or do we need to have someone knock a few primates' and bishops' heads together and tell them they are all part of the same family whether they like it or not?

Whatever we need, it is Rowan whom we have. Maybe it is just as well he's not knocking heads; maybe his intellectual wanderings will buy time and space to better preserve faith and community. Time will tell. Lord have mercy.


(photo above from St. Paul's Cathedral, "How should the world be governed?" featuring Professor Philip Bobbitt, Lord David Owen, and Archbishop Rowan Williams, in the 2004 series "The Worlds We Live In")

Certitude is not the test of certainty

Oliver Wendell Holmes, Jr. , from "Natural Law" in The Harvard Law Review:

Certitude is not the test of certainty. We have been cocksure of many things that were not so. If I may quote myself again, property, friendship, and truth have a common root in time. One cannot be wrenched from the rocky crevices into which one has grown for many years without feeling that one is attacked in one's life. What we most love and revere generally is determined by early associations. I love granite rocks and barberry bushes, no doubt because with them were my earliest joys that reach back through the past eternity of my life. But while one's experience thus makes certain preferences dogmatic for oneself, recognition of how they came to be so leaves one able to see that others, poor souls, may be equally dogmatic about something else. And this again means skepticism. Not that one's belief or love does not remain. Not that we would not fight and die for it if important — we all, whether we know it or not, are fighting to make the kind of a world that we should like — but that we have learned to recognize that others will fight and die to make a different world, with equal sincerity or belief. Deep-seated preferences cannot be argued about — you cannot argue a man into liking a glass of beer — and therefore, when differences are sufficiently far reaching, we try to kill the other man rather than let him have his way. But that is perfectly consistent with admitting that, so far as appears, his grounds are just as good as ours.

"It is enough for us that the universe has produced us and has within it ... all that we believe and love."

The jurists who believe in natural law seem to me to be in that naïve state of mind that accepts what has been familiar and accepted by all men everywhere. No doubt it is true that, so far as we can see ahead, some arrangements and the rudiments of familiar institutions seem to be necessary elements in any society that may spring from our own and that would seem to us to be civilized — some form of permanent association between the sexes — some residue of property individually owned — some mode of binding oneself to specified future conduct — at the bottom of all, some protection for the person. But without speculating whether a group is imaginable in which all but the last of these might disappear and the last be subject to qualifications that most of us would abhor, the question remains as to the Ought of natural law.

It is true that beliefs and wishes have a transcendental basis in the sense that their foundation is arbitrary. You cannot help entertaining and feeling them, and there is an end of it. As an arbitrary fact people wish to live, and we say with various degrees of certainty that they can do so only on certain conditions. To do it they must eat and drink. That necessity is absolute. It is a necessity of less degree but practically general that they should live in society. If they live in society, so far as we can see, there are further conditions. Reason working on experience does tell us, no doubt, that if our wish to live continues, we can do it only on those terms. But that seems to me the whole of the matter. I see no a priori duty to live with others and in that way, but simply a statement of what I must do if I wish to remain alive. If I do live with others they tell me that I must do and abstain from doing various things or they will put the screws on to me. I believe that they will, and being of the same mind as to their conduct I not only accept the rules but come in time to accept them with sympathy and emotional affirmation and begin to talk about duties and rights. But for legal purposes a right is only the hypostasis of a prophecy — the imagination of a substance supporting the fact that the public force will be brought to bear upon those who do things said to contravene it — just as we talk of the force of gravitation accounting for the conduct of bodies in space. One phrase adds no more than the other to what we know without it. No doubt behind these legal rights is the fighting will of the subject to maintain them, and the spread of his emotions to the general rules by which they are maintained; but that does not seem to me the same thing as the supposed a priori discernment of a duty or the assertion of a preexisting right. A dog will fight for his bone.

The most fundamental of the supposed preexisting rights — the right to life — is sacrificed without a scruple not only in war, but whenever the interest of society, that is, of the predominant power in the community, is thought to demand it. Whether that interest is the interest of mankind in the long run no one can tell, and as, in any event, to those who do not think with Kant and Hegel it is only an interest, the sanctity disappears. I remember a very tender-hearted judge being of opinion that closing a hatch to stop a fire and the destruction of a cargo was justified even if it was known that doing so would stifle a man below. It is idle to illustrate further, because to those who agree with me I am uttering commonplaces and to those who disagree I am ignoring the necessary foundations of thought. The a priori men generally call the dissentients superficial. But I do agree with them in believing that one's attitude on these matters is closely connected with one's general attitude toward the universe. Proximately, as has been suggested, it is determined largely by early associations and temperament, coupled with the desire to have an absolute guide. Men to a great extent believe what they want to — although I see in that no basis for a philosophy that tells us what we should want to want.

Now when we come to our attitude toward the universe I do not see any rational ground for demanding the superlative — for being dissatisfied unless we are assured that our truth is cosmic truth, if there is such a thing — that the ultimates of a little creature on this little earth are the last word of the unimaginable whole. If a man sees no reason for believing that significance, consciousness and ideals are more than marks of the finite, that does not justify what has been familiar in French sceptics; getting upon a pedestal and professing to look with haughty scorn upon a world in ruins. The real conclusion is that the part cannot swallow the whole — that our categories are not, or may not be, adequate to formulate what we cannot know. If we believe that we come out of the universe, not it out of us, we must admit that we do not know what we are talking about when we speak of brute matter. We do know that a certain complex of energies can wag its tail and another can make syllogisms. These are among the powers of the unknown, and if, as may be, it has still greater powers that we cannot understand, as Fabre in his studies of instinct would have us believe, studies that gave Bergson one of the strongest strands for his philosophy and enabled Maeterlinck to make us fancy for a moment that we heard a clang from behind phenomena — if this be true, why should we not be content? Why should we employ the energy that is furnished to us by the cosmos to defy it and shake our fist at the sky? It seems to me silly.

That the universe has in it more than we understand, that the private soldiers have not been told the plan of campaign, or even that there is one, rather than some vaster unthinkable to which every predicate is an impertinence, has no bearing upon our conduct. We still shall fight — all of us because we want to live, some, at least, because we want to realize our spontaneity and prove our powers, for the joy of it, and we may leave to the unknown the supposed final valuation of that which in any event has value to us. It is enough for us that the universe has produced us and has within it, as less than it, all that we believe and love. If we think of our existence not as that of a little god outside, but as that of a ganglion within, we have the infinite behind us. It gives us our only but our adequate significance. A grain of sand has the same, but what competent person supposes that he understands a grain of sand? That is as much beyond our grasp as man. If our imagination is strong enough to accept the vision of ourselves as parts inseverable from the rest, and to extend our final interest beyond the boundary of our skins, it justifies the sacrifice even of our lives for ends outside of ourselves. The motive, to be sure, is the common wants and ideals that we find in man. Philosophy does not furnish motives, but it shows men that they are not fools for doing what they already want to do. It opens to the forlorn hopes on which we throw ourselves away, the vista of the farthest stretch of human thought, the chords of a harmony that breathes from the unknown.

from PBS, The Question of God: Other Voices.

The Woman at the Well

Jesus with the Woman at the Well
by Louis Comfort Tiffany
Trinity Episcopal Church, Roslyn, New York

I had my own thoughts about this past Sunday's Gospel lesson, recounting the story of Jesus meeting the Samaritan woman at the well (John 4:1-42). But I can do no better than Jane Redmont's marvellous sermon. Please go read it at Acts of Hope.

Thought of the Day

"Forgiveness means giving up all hope of a better past."

- Dr. Jack Kornfield, a clinical psychologist
and renowned teacher of Theravada Buddhism,
(quoted by Steve Edington in Atonement).