Posts tagged with: law

Blog author: jballor
Friday, September 7, 2012
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Book Note: “Walzer, ‘In God’s Shadow: Politics in the Hebrew Bible'”
Michael Walzer, In God’s Shadow: Politics in the Hebrew Bible. New Haven: Yale University Press, 2012.

In this eagerly awaited book, political theorist Michael Walzer reports his findings after decades of thinking about the politics of the Hebrew Bible. Attentive to nuance while engagingly straightforward, Walzer examines the laws, the histories, the prophecies, and the wisdom of the ancient biblical writers and discusses their views on such central political questions as justice, hierarchy, war, the authority of kings and priests, and the experience of exile.

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Call for Papers: “Our Entrepreneurial Future: East, West, North, and South”

The Association of Private Enterprise Education Annual Conference, Maui, Hawaii, April 14 – 16, 2013. “Our Entrepreneurial Future: East, West, North, and South.” The Association of Private Enterprise Education (APEE) invites the submission of papers for its 38th International Conference in Maui, Hawaii, April 14-16, 2013. The Association is composed of scholars from economics, philosophy, political science, and other disciplines, as well as policy analysts, business executives, and other educators. APEE’s annual meeting explores topics related to private enterprise in an atmosphere that respects market approaches. Presentations reflect the latest research in fields such as regulation, public choice, microeconomics, and Austrian economics, as well as development of instructional techniques. The submission fee for the society’s journal, The Journal of Private Enterprise, is waived for papers presented at the conference.

Article: “What is the Philosophy of Law?”
John Finnis, SSRN

The philosophy of law is not separate from but dependent upon ethics and political philosophy, which it extends by that attention to the past (of sources, constitutions, contracts, acquired rights, etc.) which is characteristic of juridical thought for reasons articulated by the philosophy of law. Positivism is legitimate only as a thesis of, or topic within, natural law theory, which adequately incorporates it but remains transparently engaged with the ethical and political issues and challenges both perennial and peculiar to this age. The paper concludes by proposing a task for legal philosophy, in light of the fact that legal systems are not simply sets of norms.

Book Note: “Markets and Growth in Early Modern Europe”
Victoria N. Bateman, Markets and Growth in Early Modern Europe

This is the first study to analyze a wide spread of price data to determine whether market development led to economic growth in the early modern period. Bateman compares agricultural data with less abundant information on cloth, candles and olive oil from numerous European cities. Using a range of economic measures applied to a larger set of goods, she shows that market development occurred earlier than was previously believed.

Book Note: “Limited Government and the Bill of Rights”
Patrick M. Garry, Limited Government and the Bill of Rights

What was the intended purpose and function of the Bill of Rights? Is the modern understanding of the Bill of Rights the same as that which prevailed when the document was ratified? In Limited Government and the Bill of Rights, Patrick Garry addresses these questions. Under the popular modern view, the Bill of Rights focuses primarily on protecting individual autonomy interests, making it all about the individual. But in Garry’s novel approach, one that tries to address the criticisms of judicial activism that have resulted from the Supreme Court’s contemporary individual rights jurisprudence, the Bill of Rights is all about government—about limiting the power of government. In this respect, the Bill of Rights is consistent with the overall scheme of the original Constitution, insofar as it sought to define and limit the power of the newly created federal government.

Lectures: “Theology of Mission”
Edmund Clowney, Westminster Theological Seminary

These are 37 audio lectures from Edmund Clowney (1917-2005) of Westminster Theological Seminary from his course, “Theology of Mission,” within a broader biblical and historical study of mission and the “theology for the city.” This is one of the offerings from WTS made available via iTunesU.

Legal scholar Orin Kerr provides excerpts from the concurring opinion today in Hettinga v. United States, in which Judge Janice Rogers Brown (joined by Judge Sentelle) argues that the Supreme Court should overturn its rational basis caselaw in the economic area and return to a Lochner-era regime of judicial scrutiny for economic regulations:
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Should virtue be a consideration in judicial decisionmaking? Indiana Law Professor R. George Wright makes an intriguing argument for why the four cardinal virtues could be useful in interpreting constitutional cases:

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David Theroux of the Independent Institute concludes his two-part article on “secular theocracy” here (the full article can be read here). In this second part, Theroux observes that “C.S. Lewis understood that natural law applies to all human behavior including government officials.”

Indeed, it is hard to see how the rule of law can function apart from a conception of the natural law. Now as Theroux shows, not just any conception of the natural law will do. It has to be one rooted in the divine lawgiver to those created in his image, with the implications for dignity and basic rights entailed by such.

Otherwise you might have a “natural law” that empowers the strong over the weak on the basis of their ability to dominate, or their intelligence, or their “fitness” to rule. See, for instance, Sam Gregg’s explanation of how Plato and Aristotle justified slavery.

Blog author: jballor
Wednesday, November 23, 2011
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Creative Commons Attribution-Share Alike 3.0 Unported Author: Dustin

In this week’s Acton Commentary, “Blue Laws and Black Friday,” I argue that the increasing encroachment of commercial activity into holidays like Thanksgiving are best seen as questions of morality and the limits of the economic sphere of existence. The remedy for such issues is best sought at the level of relationship (between consumer and retailer, for instance, as well as employer and employee) rather than at the level of legal remedy, as in the case of blue laws.

In an interesting side note, the state of Massachusetts still has blue laws on the books that prevent employees from working before midnight on Thanksgiving Day. The Boston Globe editorializes that “the blue laws are creating nothing but inconvenience; many stores adjust by simply opening at 12:30 a.m. instead of midnight. Workers still come in – but half an hour deeper into the night.”

One rejoinder concerning the relationship between Thanksgiving and Black Friday is that those who have to work on Thursday ought to be thankful to have a job at all, particularly in these times of economic hardship. This is certainly true, but I don’t think this means that employees simply have to silently accept whatever their employer demands of them. As I’ve said, the remedy for this moral problem is best sought in the context of the complex web of relationships between employees, employers, and customers. And we need not derogate the true blessing that work is to say that it ought to have its limits. It seems to me that the widespread impingement of non-essential commercial activity into holidays like Thanksgiving probably crosses these limits, at least in some cases.

All of this means that customers need to be more aware of what their shopping habits and practices demand of businesses. And some companies might realize that the moral demand in certain cases might mean not giving customers what they want (e.g. opening at midnight on Thanksgiving). A salutary example of this kind of response is found in the folks at Hobby Lobby, who have never operated on Sunday.

Their reasoning goes like this: “We have chosen to close on the day most widely recognized as a day of rest, in order to allow our employees and customers more time for worship and family. This has not been an easy decision for Hobby Lobby because we realize that this decision may cost us financially. Yet we also realize that there are things more important than profits. This is a matter of principle for our company owner and officers.”

It’s wonderful when we don’t need laws to tell us what’s the right thing to do.

The New York Times ran an op-ed yesterday by Canadian legal scholar Joel Bakan, the author of a new book titled Childhood Under Siege: How Big Business Targets Children. Bakan argues that the 20th century has seen an increase in legal protections for two classes of persons, children and corporations, and that one of these is good and one is terribly, terribly bad—mean, even. That furthermore, there has been a kind of inexorable, Hegelian clash between the Corporation and the Child, but that the Corporation is steamrolling the Child, and we’ve got to step in with governmental protections.

The first problem with Bakan’s analysis is his history of personhood. In his words, children were not legal persons until the U.N. Declaration of the Rights of the Child in 1959. And as he understands it, corporations are granted certain rights of personhood simply because they have lots of money to pay lobbyists with—not because they are risk allocating mechanisms that must function semi-autonomously from the men and women who run them.

It is ridiculous to assert that “the 20th century also witnessed another momentous shift, one that would ultimately threaten the welfare of children: the rise of the for-profit corporation.” A Canadian lawyer should have some history of the common law and should know of the numerous 18th and 19th century for-profit corporations. And you can’t talk of fin de siècle child welfare reforms without corporate dark satanic mills already abusing the children.

Worse than these blunders, though, is Bakan’s view of the condition of children vis-à-vis corporations today.

Childhood obesity mounts as junk food purveyors bombard children with advertising.

We medicate increasing numbers of children with potentially harmful psychotropic drugs, a trend fueled in part by questionable and under-regulated pharmaceutical industry practices.

We also know that corporations often use [toxic] chemicals as key ingredients in children’s products, saturating their environments.

It is not even considered that children’s parents might be responsible for the food they eat, the medicines they take, or the toys they play with. Indeed, the piece begins with a reflection on Bakan’s own children’s absorption in the digital world and a sense that something is wrong with their lives, but nowhere does it occur to him to do anything about it, except to raise awareness in the pages of the New York Times. If the progressive state is to solve his own problems of parenting just as it is to solve his children’s problems, how is our brave muser any different than a child?

Bakan ends with a quotation of Nelson Mandela: “There can be no keener revelation of a society’s soul than the way in which it treats its children.” Mandela was right, and Bakan is a ward of the nanny state—it treats him as it treats his offspring, and makes children of them both. It is frightening to remember what Chesterton said—that “education is simply the soul of a society as it passes from one generation to another”—if there is no difference between generations.

Earlier this month, prize-winning novelist Marilynne Robinson delivered the 2011 Kuyper Prize Lecture at the Kuyper Center conference, “Calvinism and Culture.”

In this lecture, Robinson explores and reframes our historical understanding of the Reformed tradition and its relationship to “Christian liberalism.” She says,

Contrary to entrenched assumption, contrary to the conventional associations made with the words Calvinist and Puritan, and despite the fact that certain fairly austere communities can claim a heritage in Reformed culture and history, Calvinism is uniquely the fons et origo of Christian liberalism in the modern period, that is, in the period since the Reformation. And this liberalism has had its origins largely in the Old Testament. This is a bold statement, very much against the grain of historical consensus. Though I acknowledge that it may be indefensible in any number of particulars, I will argue that in a general sense it is not only true, but a clarification of history important to contemporary culture and to that shaken and diminishing community, liberal Protestantism.

She traces this idea of Christian liberalism to the Reformation ideas about generosity and responsibility. She notes,

But in Renaissance French, libéral, libéralité, meant “generous, generosity.” And of course the word occurs in the English Puritan translations, the Matthew’s Bible and the Geneva Bible, which were followed in their use of the term by the 1611 Authorized Version. The word occurs in contexts that urge an ethics of non-judgmental, non-exclusive generosity.

The point here does not apply to non-exclusivity of doctrine (which is how it is typically understood, and applied as she notes in the context of figures like Adolf von Harnack). The point is rather that Christian liberalism, as informed by the Reformed reception of the biblical witness, is that it is focused on a vision of social life and culture.

As Robinson says, “All this is of interest because the verses I have quoted and the word liberal itself, supported by the meaning the verses give to it, are central to American social thought from its beginning.”

The audio of Robinson’s lecture is available in MP3 format here.

When we think of rule of law failure, countries like Zimbabwe and Somalia come to mind. But as Acton Research Director Samuel Gregg points out in his latest piece over at Public Discourse, rule of law can also be subtly eroded in wealthy countries. The negative consequences for risk-taking, entrepreneurship, and long term investment, he says, can be far-reaching.

Risk is an inherent part of the workings of market economies. But Gregg notes that’s not the same thing as uncertainty:

Measurable risks are . . . no deterrent to the making of economic choices. If we take them seriously, they help us to calibrate our economic choices to be consistent with our responsibilities, resources, and opportunities. The same measurements also allow us to distinguish between prudent risk takers and the reckless, and reward them appropriately. Uncertainty, by contrast, involves those risks that cannot be quantified. It can occur either because of the sheer complexity of a given situation or because the subject matter cannot be reasonably measured. As long as a situation of uncertainty persists, it will deter many people from even considering whether to take economic risks.

Uncertainty in America, according to Gregg, is being magnified by the sheer complexity of laws such as the United States Internal Revenue Code:

A tax code of this size and complexity which is subject to so many sources of potentially conflicting official and semi-official explanations is bound to embody significant contradictions, and offers considerable scope for arbitrary decision-making. Uncertainty is the result. It’s also valid to claim that the same tax code may well be impossible for large numbers of honest law-abiding citizens to understand and comply with—not to mention difficult for conscientious civil servants to administer justly. As a result, many people may unintentionally violate the law or simply choose to forgo making any number of potentially wealth-creating opportunities for fear of violating the law.

Another example is the thousands upon thousands of pages of legislation being passed by Congress every year. As Gregg writes:

Then there are the rule-of-law problems associated with the sheer volume of law that directly shapes American economic life. The 2010 healthcare reform legislation, for instance, amounted to 2,700 pages. Not far behind it in length was the 2010 financial overhaul act: a mere 2,300 pages. More than a few legislators have confessed to never having read either piece of legislation in its entirety. Nor should we assume any great familiarity on their part with the thousands of pages of legislation which these acts superseded, integrated, or reinterpreted. The possibility that many laws governing healthcare and financial services have subsequently been rendered unclear, inconsistent, and impossible to comprehend is high.

These erosions of rule of law, Gregg says, result in large incentives not to take risks and not to make long-term investments. It also encourages entrepreneurs to look elsewhere for a more friendly, stable and comprehensible legal environment.

Read the piece in its entirety at Public Discourse.

A popular citation of Martin Luther King, Jr.’s justly-famous “Letter from Birmingham Jail” is his reference to natural law and Thomas Aquinas:

How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.

The Witherspoon Institute has announced today its project, “Natural Law, Natural Rights, and American Constitutionalism,” which “will serve as an online resource center for students, teachers, and educated citizens to learn about the intellectual traditions of natural law and natural rights, particularly within American political and constitutional history.”

The current list of essays by contributors is expansive and impressive, and includes an essay by Acton’s own director of research Sam Gregg, “Natural Law and the Law of Nations.” Be sure to check out this resource from the Witherspoon Institute. I’m eager to see how the site develops and grows. I’m also interested in seeing who will write the currently missing essay (or set of essays) on the Reformation and natural law (including modern Protestantism and natural law). Sigmund’s essay currently covers the period, but much more needs to be said.

Currently the “Early Modern Liberal Roots of Natural Law” primary source section includes Locke, Hobbes, and Montesquieu. This is of course an important stream of natural-law thinking in the early modern era, but hardly the only one and certainly not the only one with later influence.

Additionally, to be of more scholarly use, I think the primary source collection should point toward digitally-accessible forms. I talk about this in the context of theology and economics in an editorial in the latest issue of the Journal of Markets & Morality, “Printed Source and Digital Resource in Economics and Theology” (PDF), and point especially towards the example of the Post-Reformation Digital Library (see, for instance, the pages on Locke and Hobbes).