Posted on by Marc O. DeGirolami

“Hate, Politics, Law” (Brudholm & Johansen eds.)

What could be less lovable than the “hateful”? What person–and, indeed, what people–Hate.jpegcould feel anything but hate for the hateful? At a period of deep cultural and political fracture, the concept of the hateful performs important rhetorical and political work, providing the state with at least something, or some set of views, that serves as a unifying object of civic opprobrium, vilification, and even disgust. Here is a new book whose contributors appear to turn a helpfully critical eye on the concept of “hate” in law–Hate, Politics, Law: Critical Perspectives on Combating Hate (OUP), edited by Thomas Brudholm and Birgitte Schepelern Johansen.

References to hate have become ubiquitous in the modern response to group defamation and violence in liberal democracies. Whether expressed in speech, acted out in criminal conduct, or seen as the fuel of terror and extremism, hate is persistently considered a vice, an evil, and a threat to the modern liberal democracy. But what exactly is at stake when societies oppose hate?

In Hate, Politics, Law: Critical Perspectives on Combating Hate, Thomas Brudholm and Birgitte Schepelern Johansen have gathered a group of distinguished scholars who offer a critical exploration and assessment of the basic assumptions, ideals, and agendas behind the modern fight against hate. They explore these issues and provide a range of explanatory and normative perspectives on the awkward relationship between hate and liberal democracy, as expressed, for example, through anti-hate speech and anti-hate crime initiatives. The volume further examines the presuppositions and ideological roots of fighting hate, as well as its blind spots and limits. It also includes discussions on the definition and meaning of hate, the longer and broader history of the concept of hate, and when and why fighting hatred became politically salient. While most research on hate crime is written and published in order to prevent and combat hate, Hate, Politics, Law takes a much-needed theoretical, historical, and exploratory approach to hatred.

Posted on by Marc O. DeGirolami

Lieberman & Patrick, “Objection”

The role of disgust in the law is ancient and vital. Disgust has often been thought a marker of the bounds of the civilized. It is one of those signals in, for example, criminal law that warn of entry into the territory of the deeply transgressive, and that constitute a particularly distinctive corner of criminal prohibition. Disgust aligns with and supports those “creedal prohibitions” without which, as Philip Rieff once said, “our law cannot help us govern ourselves.”

Yet one of the major projects of liberal modernity in law and politicsDisgust.jpeg has been to overcome disgust, denigrate as simply a backward and unenlightened emotion, and replace it with a fully rationalized and ostensibly more humane system of governance. See, for example, here. And here is another book with a similar object, albeit from a different disciplinary perspective, though I do wonder whether “gross” and “wrong” are really as often confused together as the blurb below suggests–Objection: Disgust, Morality, and the Law (OUP) by psychologists Debra Lieberman and Carlton Patrick.

Why do we consider incest wrong, even when it occurs between consenting adults unable to have children? Why are words that gross us out more likely to be deemed “obscene” and denied the protection of the First Amendment? In a world where a gruesome photograph can decisively influence a jury and homosexual behavior is still condemned by some as “unnatural,” it is worth asking: is our legal system really governed by the power of reason? Or do we allow a primitive human emotion, disgust, to guide us in our lawmaking?

In Objection, psychologists Debra Lieberman and Carlton Patrick examine disgust and its impact on the legal system to show why the things that we find stomach-turning so often become the things that we render unlawful. Shedding light on the evolutionary and psychological origins of disgust, the authors reveal how ancient human intuitions about what is safe to eat or touch, or who would make an advantageous mate, have become co-opted by moral systems designed to condemn behavior and identify groups of people ripe for marginalization. Over time these moral stances have made their way into legal codes, and disgust has thereby served as the impetus for laws against behaviors almost universally held to be “disgusting” (corpse desecration, bestiality) – and as the implicit justification for more controversial prohibitions (homosexuality, use of pornography). Written with a critical eye on current events, Lieberman and Patrick build a case for a more reasoned approach to lawmaking in a system that often confuses “gross” with “wrong.”

Posted on by Liam Ray

Around the Web

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Posted on by Mark Movsesian

Wimpfheimer, “The Talmud”

9780691161846Here is an interesting-looking new book from Princeton University Press on the foundational text of Jewish law, The Talmud: A Biography. The author is Northwestern University religious studies professor Barry Wimpfheimer. The description from the Princeton website follows:

The life and times of an enduring work of Jewish spirituality

The Babylonian Talmud, a postbiblical Jewish text that is part scripture and part commentary, is an unlikely bestseller. Written in a hybrid of Hebrew and Aramaic, it is often ambiguous to the point of incomprehension, and its subject matter reflects a narrow scholasticism that should hardly have broad appeal. Yet the Talmud has remained in print for centuries and is more popular today than ever. Barry Scott Wimpfheimer tells the remarkable story of this ancient Jewish book and explains why it has endured for almost two millennia.

Providing a concise biography of this quintessential work of rabbinic Judaism, Wimpfheimer takes readers from the Talmud‘s prehistory in biblical and second-temple Judaism to its present-day use as a source of religious ideology, a model of different modes of rationality, and a totem of cultural identity. He describes the book’s origins and structure, its centrality to Jewish law, its mixed reception history, and its golden renaissance in modernity. He explains why reading the Talmud can feel like being swept up in a river or lost in a maze, and why the Talmud has come to be venerated–but also excoriated and maligned—in the centuries since it first appeared.

An incomparable introduction to a work of literature that has lived a full and varied life, this accessible book shows why the Talmud is at once a received source of traditional teachings, a touchstone of cultural authority, and a powerful symbol of Jewishness for both supporters and critics.

 

Posted on by Liam Ray

Around the Web

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Posted on by Mark Movsesian · 1 Comment

Bessler, “The Celebrated Marquis”

9781611637861Did you know that Cesare Beccaria’s monumental work, Of Crimes and Punishments, landed on the Catholic Church’s list of forbidden books? I didn’t. And that he once was a member of a group called the “Academy of Fists?” (Maybe resident Italophone Marc can explain). I did know that Beccaria’s early-utilitarian views on the purposes of criminal law greatly influenced the American Framers. All these subjects are covered in this new book by University of Baltimore law professor John Bessler, The Celebrated Marquis: An Italian Noble and the Making of the Modern World. The publisher is Carolina Academic Press. Here’s the description from the publisher’s website:

During the Enlightenment, a now little-known Italian marquis, while in his mid-twenties as a member of a small Milanese salon, the Academy of Fists, wrote a book that was destined to change the world. Published anonymously in 1764 as Dei delitti e delle pene, and quickly translated into French and then into English as On Crimes and Punishments, the runaway bestseller argued against torture, capital punishment, and religious intolerance. Written by Cesare Beccaria (1738-1794), an economist and recent law graduate of the University of Pavia, On Crimes and Punishments sought clear and egalitarian laws, better public education, and milder punishments. Translated into all of the major European languages, Beccaria’s book led to the end of the Ancien Régime.

Praised by Voltaire and the French philosophes, Beccaria was toasted in Paris in 1766 for his literary achievement, and his book—though banned by the Inquisition and placed on the Catholic Church’s Index of Forbidden Books—was lauded by monarchs and revolutionaries alike. Among its admirers were the French Encyclopédistes; Prussia’s Frederick the Great; Russia’s enlightened czarina, Catherine II; members of the Habsburg dynasty; the English jurist Sir William Blackstone; the utilitarian penal reformer Jeremy Bentham; and American revolutionaries John Adams, Thomas Jefferson, and James Madison. On Crimes and Punishments, decrying tyranny and arbitrariness and advocating for equality of treatment under the law, helped to catalyze the American and French Revolutions. In 1774, on the cusp of the Revolutionary War, the Continental Congress explicitly hailed Beccaria as “the celebrated marquis.”

Called the “Italian Adam Smith” for his pioneering work as an economist in Milan, Cesare Beccaria—like his Italian mentor, Pietro Verri—wrote about pleasure and pain, economic theory, and maximizing people’s happiness. Once a household name throughout Europe and the Americas, Beccaria taught economics before the appearance of Smith’s The Wealth of Nations but died in obscurity after working for decades as a civil servant in Austria’s Habsburg Empire. As a public councilor, Beccaria pushed for social and economic justice, monetary and legal reform, conservation of natural resources, and even inspired France’s adoption of the metric system. In The Celebrated Marquis, award-winning author John Bessler tells the story of the history of economics and of how Beccaria’s ideas shaped the American Declaration of Independence, constitutions and laws around the globe, and the modern world in which we live.

Posted on by Mark Movsesian

Movsesian at Princeton

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Movsesian (left) with Madison Program Executive Director Brad Wilson

 

St. John’s has posted a news item on my visiting fellowship at Princeton University’s James Madison Program this semester:

Professor Movsesian, who is the director of the Center for Law and Religion at St. John’s Law, is devoting his time at Princeton to his current writing project, “The Future of Religious Freedom.” The project explores the cultural and political trends that make religious freedom increasingly problematic in American life, and shows how those trends are likely to affect constitutional law.

He presented an early version of the project, a paper on religion and the administrative state, at a conference at George Mason University Law School in March, and will present a revised version at a workshop at Princeton this month. Professor Movsesian will also participate in a panel, “Religious Freedom at Home and Abroad,” at the Madison Program’s annual conference in May.

“It’s a wonderful experience,” Professor Movsesian says of his fellowship. “I greatly appreciate the opportunity to spend time at Princeton and interact with so many serious scholars. I know my work will improve as a result.” Madison Program Executive Director Bradford Wilson adds, “Professor Movsesian brings to Princeton University his exceptional knowledge of the place of religious freedom in American constitutional and statutory law. His inquisitive and generous spirit has enlivened the never-ending dialogue in our Program on law and politics. We are honored to have him with us.”

I know we have some readers on the Princeton campus, so please stop by and say hello! I’m here through June.

Posted on by Mark Movsesian

Melnick, “The Transformation of Title IX”

9780815732228Yesterday, I posted about the threat the growth of the administrative state poses for traditional religious believers. One under-appreciated aspect of this threat is title IX, which prohibits educational institutions that receive federal financial assistance from discriminating on the basis of sex. Of course, most educational institutions affiliated with traditional religious groups have no problem with a ban on sex discrimination, understood in traditional terms. As administrators expand the coverage of title IX –to cover transgender students, for example–those institutions can quickly find themselves on the wrong side of the law. And, because the large majority of such institutions cannot do without federal financial assistance, the pressure on them to change, or at least downplay, their religious convictions is great.

A new book from the Brookings Institution by Boston College political scientist Shep Melnick addresses the importance of title IX in our current culture wars. The book is The Transformation of Title IX: Regulating Gender Equality in Education. Here’s the description from the Brookings website:

One civil rights-era law has reshaped American society—and contributed to the country’s ongoing culture wars

Few laws have had such far-reaching impact as Title IX of the Education Amendments of 1972. Intended to give girls and women greater access to sports programs and other courses of study in schools and colleges, the law has since been used by judges and agencies to expand a wide range of antidiscrimination policies—most recently the Obama administration’s 2016 mandates on sexual harassment and transgender rights.

In this comprehensive review of how Title IX has been implemented, Boston College political science professor R. Shep Melnick analyzes how interpretations of “equal educational opportunity” have changed over the years. In terms accessible to non-lawyers, Melnick examines how Title IX has become a central part of legal and political campaigns to correct gender stereotypes, not only in academic settings but in society at large. Title IX thus has become a major factor in America’s culture wars—and almost certainly will remain so for years to come.

Posted on by Mark Movsesian

Postell, “Bureaucracy in America”

9780826221230Many scholars have noted that the growth of government inevitably poses a challenge for religious exercise. Quite simply, as government expands to cover more and more aspects of daily life, and as the number of rules increases, the potential for conflict with citizens’ conduct grows–especially for citizens who dissent from trending social norms. These citizens can expect special trouble from the rise of the administrative state.

A new book on the growth of the administrative state by University of Colorado political scientist Joseph Postell, Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government, has been getting a lot of attention. The publisher is the University of Missouri Press. Here’s the description from the press’s website:

The U.S. Constitution requires laws be made by elected representatives. Yet today, most policies are made by administrative agencies whose officials are not elected. Not coincidentally, many Americans increasingly question whether the political system works for the good of the people. In this trenchant intellectual history, Postell demonstrates how modern administrative law has attempted to restore the principles of American constitutionalism, but it has failed to be as effective as earlier approaches to regulation.

 

Posted on by Liam Ray

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