A New Book on Pontius Pilate

I’ve been meaning to post this interesting-looking new book on Pontius Pilate and the trial of Jesus by David Dusenbury, a post-doc at Hebrew University: The Innocence of Pontius Pilate How the Roman Trial of Jesus Shaped History (Hurst). The Gospel accounts paint Pilate as an ambivalent figure, more or less forced by circumstances to issue a sentence of death against Jesus. According to Dusenbury, though, some early Christian writers went further, arguing that Pilate had in fact acted justly at the trial. Dusenbury maintains that arguments about Pilate’s “innocence” helped shape the emerging Christian theory of religious tolerance.

Here’s the publisher’s description:

The gospels and the first-century historians agree: Jesus was sentenced to death by Pontius Pilate, the Roman imperial prefect in Jerusalem. To this day, Christians of all churches confess that Jesus died ‘under Pontius Pilate’. But what exactly does that mean?

Within decades of Jesus’ death, Christians began suggesting that it was the Judaean authorities who had crucified Jesus—a notion later echoed in the Qur’an. In the third century, one philosopher raised the notion that, although Pilate had condemned Jesus, he’d done so justly; this idea survives in one of the main strands of modern New Testament criticism. So what is the truth of the matter? And what is the history of that truth?

David Lloyd Dusenbury reveals Pilate’s ‘innocence’ as not only a neglected theological question, but a recurring theme in the history of European political thought. He argues that Jesus’ interrogation by Pilate, and Augustine of Hippo’s North African sermon on that trial, led to the concept of secularity and the logic of tolerance emerging in early modern Europe. Without the Roman trial of Jesus, and the arguments over Pilate’s innocence, the history of empire—from the first century to the twentyfirst—would have been radically different.

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Remarks on the Connection of Substantive Morality to the Rule of Law and Stare Decisis

I enjoyed speaking about the relationship of substantive and procedural ideas of justice to the rule of law and stare decisis on this panel, part of The International Forum on the Future of Constitutionalism’s “Global Summit” organized by Professor Richard Albert. In my remarks, I argued against a thin, purely proceduralist view of the rule of law and stare decisis, and also against a morally thick, substantive view of the rule of law and stare decisis. I urged an intermediate possibility. As the rule of law seems to be in the air, so to speak, I thought I would reproduce my remarks. They are below.

“I want to reflect on the relationship of substantive political morality to the rule of law and stare decisis. On some accounts, the virtues of both the rule of law and stare decisis are purely procedural. On other accounts, the rule of law incorporates thick, substantive conceptions of political morality. For example, a set of substantive human rights as defined by an international body or other community. Or some thick, substantive ideal of equality or justice. Interestingly, people do not take this second view about stare decisis, the obligation of courts as a general matter to stand by a prior precedent even when they disagree with it. So far as I know, nobody thinks stare decisis contains an ideal of human rights, for example.

So, which account is right? There are a few possibilities. One possibility is that the rule of law *and* stare decisis both embody purely procedural ideals, and that those arguing for a substantive political morality within the rule of law are wrong. A second possibility is that the rule of law embodies substantive political morality while stare decisis does not. That is, the rule of law and stare decisis are relevantly different on this score. And a third possibility is that both the rule of law and stare decisis incorporate procedural and moral values. Now, even though as I indicated, nobody takes this view as to stare decisis (though some do as to the rule of law), I actually think this is the correct position.

But the type of substantive political morality incorporated within the rule of law and stare decisis is not the sort of thick view of the second possibility—equality or human rights or liberty or antidiscrimination, for example. It is instead a kind of political morality related to the procedural virtues of both.

Let me briefly describe the first two views. I’ll then take on the third view, sketching Lon Fuller’s position and extending it in ways that thicken it somewhat, but not all the way, so to speak. Not to oatmeal or gruel thickness, but more like to lobster bisque or vichyssoise thickness.


First, the purely procedural view. This is the view that the rule of law and stare decisis incorporate nothing of substantive political morality. Rather, the rule of law is about the law’s generality, its equal application, its predictability, consistency, and prospectivity. In societies governed by the rule of law, the rules are supposed to rule, not the people making and implementing those rules. Stare decisis’ procedural virtues are similarly generally conceived as including legal stability, consistency, and predictability. Notice the overlap of procedural virtues here. In fact, we might say that stare decisis incorporates many, though not all, the procedural virtues of the rule of law, but it does so in a particular context—judicial decisionmaking. That’s the first view.

The second view is that in addition to these procedural virtues, the rule of law incorporates thick substantive ideals of political morality like human rights, sexual equality, whatever. This position has become more popular of late, perhaps in part because of the felt need to anchor contested substantive political ideals in a comparatively uncontested procedural ideal like the rule of law.

Still, I think this second view is wrong. To believe in the law’s predictability and stability has nothing necessarily to do with believing in human rights or equality or nondiscrimination. Let me give three reasons, which should be familiar.

First, legal regimes with unjust or repressive laws can be committed to the rule of law. Now you might say—well, even in morally unjust regimes, consistency in legal application is a virtue and a kind of justice. And that’s true, but then we’ve reduced the idea of justice to equality of legal application. That is at least a very thin understanding of justice.

Second, someone might say, well, we have to affirm the procedural virtues of the rule of law because we can only achieve thick, substantive political and moral ideals like human rights and human dignity if we affirm the rule of law. We have to affirm the rule of law for instrumental reasons. But I think that’s wrong too. Procedural rule of law virtues actually may be *in tension* with achieving some of these thick political-moral ideals. A person committed to, say, a particular conception of sexual equality might think it important, or even required, to reject some procedural rule of law virtue that is perceived to obstruct that substantive vision of the good.

Third, as for the rule of law as a rule of rules, rather than people, here again, various thick, substantive political or moral ideals might just as easily clash with the rule of law as be promoted by it. As Lon Fuller, to whom I will return in a moment, puts it: “From the standpoint of the inner morality of law, it is desirable that laws remain stable through time. But it is obvious that changes in circumstances, or changes in men’s consciences, may demand changes in the substantive aims of law, and sometimes disturbingly frequent ones.” 44 So much for what I’ve described as the second view—that the rule of law incorporates or somehow necessarily subserves a thick version, an oatmeal or pea soup version, of substantive political morality—liberalism, human rights, distributive justice, and so on.

Does this mean that the first view—the purely procedural view of the rule of law (and, for that matter, of stare decisis)—is the correct one? I do not think so. I think there is an intermediate conceptual possibility between the purely procedural and the thickest political-moral conception of the rule of law. It’s a conception of the morality of the rule of law that also applies, I think, to the morality of stare decisis. What is that conception?

Here I think it’s helpful to return to Fuller’s book, The Morality of Law. Fuller described what he called the “internal morality of law” and its “neutrality” toward substantive aims. The internal morality of law, Fuller claimed in Chapter 2, consists of several virtues of a legal system that sound proceduralist: (1) generality—the requirement that there actually be rules rather than patternless commands; (2) promulgation—to ensure to some degree that those subject to the law know what it is; (3) prospectivity—to be ruled by law is to be ruled by existing law, not non-existing law; (4) clarity; (5) avoiding contradictory laws; (6) avoiding laws that require the impossible; (7) constancy or stability of the law through time; and (8) congruence between law and official action enforcing it.

And in chapter 4, Fuller is explicit that law’s internal morality comprised of these 8 virtues is “indifferent toward the substantive aims of law and ready to serve a variety of such aims with equal efficiency.” The example Fuller uses is contraception—which can be legally protected or prohibited without affecting the law’s internal integrity at all.

Nevertheless, Fuller maintains that the inner morality of law, while neutral over a wide range of moral issues, “is not neutral in its view of man himself.” Adhering to the inner morality of law, Fuller claimed, is committing oneself to the view that people can be “responsible agents, capable of understanding and following rules, and answerable for their defaults.” So for Fuller, commitment to certain concepts of moral agency and responsibility follows from commitment to the procedural values of law—to law’s inner morality.

I want to suggest some other moral commitments that follow from commitment to the inner morality of law, but that Fuller did not raise. Moral commitments that are not of the thickest sort—not a particular conception of human rights, for example, or a contested view of equality. Rather, these are thinner moral commitments that are still thicker than the proceduralist’s virtues. Vichyssoise rather oatmeal.

Take what Fuller says about Clarity as part of the inner morality of law: “Sometimes the best way to achieve clarity is to take advantage of, and to incorporate into law, common sense standards of judgment that have grown up in the ordinary life lived outside legislative halls.” Good faith, due care, due process, cruel and unusual punishment, and so on. Or take instead his view that Constancy/stability of the law through time is part of the inner morality of law. Can we say something more in reflecting on clarity, and constancy or stability, about the connection between the rule of law and political morality. Or between stare decisis and political morality?

I think we can. Clarity and constancy depend upon the longevity and endurance of law. For the law to be clear, it must often depend upon shared assumptions, shared cultural ways of thinking and knowing that have developed over time, sometimes a very long time, and extend well before the simple text of the law itself. There are very few, if any, self-evident truths in law and politics. The truths that we have are largely truths because they have been cultivated and transmitted over time.

For the law to be constant and stable, it has to have endured. It has to have lasted. The longer the better, the older the more stable and the more constant. So that to favor law’s constancy and stability as a part of the rule of law is to make a necessary claim about law’s traditionalism. The importance of its age and its endurance. Endurance implies durability—the capacity to withstand sudden or rapid changes in the law that are deeply unsettling to the law’s internal morality.

What about stare decisis? Well, stare decisis is a concept derived from the common law. What made the law “common” was that it reflected the substantive and long-enduring habits, practices, and traditions of the people. Legal stability of the sort promoted by stare decisis allows people to coordinate their lives and their common projects now and intergenerationally. So it’s not just the satisfaction of reliance interests that is at stake. The stability promoted by both stare decisis and the rule of law enables the law to connect and align a people’s past, present, and future. It creates roots—rooting present law to “precedent” law and subsequent law.

The value of the rule of law and stare decisis, therefore, must incorporate an orientation toward preserving law’s traditionalism, its age, durability, and intergenerational transmission. Law’s traditionalism as a feature of the rule of law and stare decisis, I think, is a thicker sort of political morality than the strictly procedural view. But it is a thinner sort of political morality than the thickly substantive view.

One more thought. This intermediate possibility I am describing is not only different from the thicker substantive possibility. The two views of the rule of law are in tension. The rule of law and stare decisis conceived as incorporating this intermediate thickness political morality—this traditionalism connected to law’s clarity and its stability—may well conflict with rule of law conceptions that incorporate substantive positions on distributive justice, human rights, equality.

That conflict will occur, I think, when the thicker conceptions of political morality simply are not part of law’s traditionalism but instead run counter to it. In those circumstances, to favor the rule of law and stare decisis may well be to favor moral visions of law at odds with those thicker understandings that blend procedure and substantive morality.”

Panel Friday on Stare Decisis, Justice, and the Rule of Law

I’m very happy to be participating in an online panel discussion this Friday on Stare Decisis, Justice, and the Rule of Law. The panel is part of The Global Summit on the Future of Constitutionalism, a huge conference put together by Professor Richard Albert of the University of Texas Law School. My co-panelists are Lisa Burton-Crawford (University of New South Wales Faculty of Law); Jeffrey Pojanowski (Notre Dame Law School); and Leonid Sirota (Auckland University of Technology). Andrea Pin (University of Padua) will moderate.

The title of my presentation: “How the Morality of the Rule of Law and Stare Decisis is More Like Vichyssoise Than Oatmeal.”

The panel is this Friday at 2:00. Registration is free! Zoom on by.

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Originalism and Its Discontents

I’m on a panel today at the Federalist Society Faculty Conference with this subject as its title, moderated by Professor John McGinnis (Northwestern) and with commentary by Professor Randy Barnett (Georgetown). The panel runs from 11:00-12:30. Here’s a link to the livestream, which I’ve also included below–please listen in!

EVENT VIDEO

DESCRIPTION

Originalism & Its Discontents
11:00 am – 12:30 pm

This panel will discuss some of the critiques of originalism as offered by libertarians and social conservatives.

  • Prof. Randy Barnett, Georgetown University Law Center
  • Prof. Marc DeGirolami, St. John’s University School of Law
  • Prof. Joshua Kleinfeld, Northwestern University Pritzker School of Law
  • Dr. Jesse Merriam, Patrick Henry College
  • Prof. Christina Mulligan, Brooklyn Law School
  • Moderator: Prof. John McGinnis, Northwestern University Pritzker School of Law

“Reconstructing Malice in the Law of Punitive Damages”

I’m pleased to announce that my new paper, Reconstructing Malice in the Law of Punitive Damages, will be published by the Journal of Tort Law next year. The paper is my first foray into tort law scholarship, though I have been teaching Torts for the last 3 years at St. John’s. Malice, in the common law of crime and tort, is a thorny subject with a complicated and ancient lineage. Indeed, there are interesting connections between law and religion, on the one hand, and notions of malice in the law, on the other. But malice’s legacy was questioned beginning in the 19th century with Holmes (and others including J.F. Stephen) and then repudiated more decisively in the work of 20th century tort law giants like William Prosser and criminal law giants like Herbert Wechsler.

This paper attempts to reconstruct a historically correct, conceptually coherent, and normatively compelling case for malice’s reintroduction into the law of punitive damages. It also speculates about the utility of this reconstructed account of malice in other fields, especially criminal law. Finally, though this paper does not approach this topic, it does suggest the possibility of reconstructivism as a broader theory of law and legal development, something about which I hope to write in the future. Here is the abstract.

Punitive damages present two related puzzles. One concerns their object. If they are punitive, their object is to punish tortfeasors. If they are damages, their object is to compensate tort victims. If they are both, as the Supreme Court has recently stated, the problem is to reconcile these different objects in applying them. A second puzzle involves their subject. Punitive damages are awarded for egregious wrongdoing. But the nature of that egregiousness is nebulous and contested, implicating many poorly understood terms. The two puzzles are connected, because the subject of punitive damages will inform their object. Once we know the type of wrongfulness that punitive damages deal with, we can understand better whether and how they are punishing, compensating, or both.

This Article reconstructs one of punitive damages’ central subjects: malice. In so doing, it clarifies one key object of punitive damages: to offer redress to a victim of cruelty. Malice is a ubiquitous textual element in the state law of punitive damages. But there has been little scholarly commentary about what malice means for punitive damages. Drawing from the common history of tort and criminal law, this Article identifies two core meanings of malice: a desire or motive to do wrong, and a disposition of callous indifference to the wrong inflicted. Though distinct, these meanings broadly coalesce in the concept of cruelty. The Article argues that this reconstructed account of the wrong of malice represents a powerful justification for awarding punitive damages. Malice as cruelty as a justification for punitive damages also fits within a broader view of tort law as redress for specific private wrongs. But malice as a subject of punitive damages clarifies and enriches this account of their object. A victim of a tort done with malice, and who is aware of it, has been wronged more gravely than a victim of a tort done without malice and is therefore entitled to greater redress.

Drakeman, “An Establishment Clause Miracle Story”

Don Drakeman, Distinguished Research Professor at Notre Dame and a member of our Board of Advisors here at the Center for Law and Religion, wrote us recently to pass along this wonderful story about an obscure Christmas carol and our current, perhaps even more obscure, Establishment Clause jurisprudence. We take great pleasure in posting Don’s essay below, and in wishing all our readers a very Merry Christmas, a peaceful holiday season, and a Happy New Year!

* * *

The holidays are a time for inspiring stories, and where better for Law and Religion Forum readers to turn than the Establishment Clause?

            During some family caroling, my daughter Cindy and her husband Richard introduced me to Franz Biebl’s Ave Maria, a breathtakingly beautiful choral work.  This isn’t the famous version by Schubert you hear this time of year.  It’s the one by an obscure 20th century German composer, who spent most of WWII as a POW in Michigan.  The composition is completely different from the Schubert piece, and you’ll only recognize it if you get your music via NPR.

            Herr Biebl’s Ave Maria has become our inspirational story thanks to the 9th Circuit’s 2009 decision in Nurre v. Whitehead.  The seniors in the Jackson High School band were asked to choose what they wanted to play at graduation, and they picked an instrumental version of Biebl’s piece because they thought it would “showcase their talent.”  But the Biebl was nixed by the school administrators on the grounds that “the title and meaning…had religious connotations and would be easily identified as such by attendees.”  The 9th circuit backed them up, saying that the school’s action was an appropriate way to avoid an Establishment Clause problem. 

As far as I can see, the court’s decision required a series of miracles, each involving a degree of faith in the education of America’s youth that, as the KJV might say, “passeth all understanding.”

            The First Miracle:   That anyone was listening.  As a veteran high school band member, I can testify that the one thing the senior class is not doing when the band is playing is paying attention to the music.  The chance that any of them would think, “Wow, what a great piece!  I’ll check the program to see what it’s called” rounds to zero.  But, in this season of miracles, let’s say they did, and learned that it was named Ave Maria.

            The Second Miracle:  That the seniors had any idea what “Ave Maria” means.  I would like to share the judges’ faith that the seniors were well versed in Latin.  Yet, even if they were, Biebl’s effect would more likely be something like this:

            Football Captain:  Are you waving at the band?

Head Cheerleader:  Yes, they are playing that for me.  It’s called, “Hey, Mary.”  Didn’t you pay attention in AP Latin?

            Football Captain:  You have to stop skipping Latin Club meetings.  The Romans didn’t say “Hey,” they said, “Hail.”   This song is in honor of my “Hail Mary” touchdown pass in the championships.

High School football may inspire religious-like devotion, but at least so far, not enough to violate the Establishment Clause.

            The Third Miracle:  That there could possibly be a “primary effect” of advancing religion under the 9th Circuit’s use of the Lemon Test.  In other words, someone had to pay attention to the band, consult the program to learn the title, understand its meaning and religious significance, and then have a sufficiently religious experience that the instrumental rendition of the piece during graduation had a primary effect of advancing religion.  But, if you think about it, we don’t see people falling to their knees in prayer when they hear Josh Groban’s Ave Maria at the mall, and his version actually has words.  Besides, the students most likely to manifest this third miracle involving a traditional Catholic prayer are the Catholic ones, and they were more likely to be graduating from the large Catholic high school just five minutes away.

            Justice Alito called this decision “troubling” in his cert. denial dissent, but I prefer to see it as an inspiring story of faith in our educational system, where classically educated seniors listen to the wind ensemble with rapt attention, and find their religious beliefs profoundly deepened by the simple trigger words, Ave Maria.

            On that inspirational note, if you are seeking to brighten your Christmas season, look no further than Chanticleer’s rendition of Biebl’s Ave Maria on YouTube.  We have it on good authority that it will be a religious experience.

——

Don would like to thank Cindy Drakeman and Richard Wanerman, who not only introduced him to Biebl, but who also appear on this year’s Grammy-nominated recording of the world premier of Kastalsky’s Requiem.  Since the Requiem includes the hymn Rock of Ages, he hopes the Grammys do not get any federal funding because the awards are being given in the 9th Circuit.

Legal Spirits Episode 030: Supreme Court Blocks NY’s Covid Restrictions on Churches

By a vote of 5-4, the Supreme Court recently granted a preliminary injunction against New York’s restrictions on church gatherings during the continuing Covid epidemic. In this episode, we discuss the case, Roman Catholic Diocese of Brooklyn v. Cuomo, and explore its implications for similar cases pending at the Court. We also ask why these cases have provoked such a reaction in the wider public (hint: it’s politics and the culture wars). Listen in!

Armenia’s Future

In First Things today, I have an essay on the Second Karabakh War: what happened, why it happened, and Armenia’s path for the future. Here’s an excerpt:

Notwithstanding the loss of territory and the terrible loss of life, Armenians should resist despair. Armenia’s history is very long, and things have looked bleak at many points—for example, when the Persians defeated Armenians at the Battle of Avarayr in the fifth century, when Arabs invaded in the seventh, when Turks invaded in the eleventh, and when Mongols invaded in the fourteenth. More recently, there was the 20th-century genocide after which, improbably, Armenians succeeded in reestablishing a state for the first time in several hundred years. 

In the wake of the Second Karabakh War, Armenians need to evaluate their mistakes—especially their misguided optimism about support from Western governments and human rights organizations—accept certain realities, and work to rebuild. Notwithstanding a calamitous history filled with injustice, Armenians have preserved a distinct and continuous Christian witness in the Caucasus for millennia. With God’s help, they will survive this most recent defeat as well. 

You can read the whole essay here.