Regulatory Fictions: On Marriage and Countermarriage Reply


I’ve been waiting to read a recent article I discovered in the California Law Review by Columbia law professor Elizabeth F. Emens titled “Regulatory Fictions: On Marriage and Countermarriage”–the abstract follows:

Debates about marriage currently capture much public attention. Scholars have pushed beyond the question of whether gays are worthy of marriage to ask whether marriage is worthy of gays. The present moment of questioning marriage in its current form may be brief. Thus, we should take this opportunity to imagine the widest possible range of alternatives to our current marriage regime—what I call countermarriage regimes. This Essay draws on two unlikely sources of legal innovation to expand our thinking about marriage alternatives: literature and anti-gay law. Literature offers an array of countermarriage regimes, including exploding marriage, threestrikes marriage, line marriage, renewable marriage, and exculpatory marriage. Anti-gay law, if we reimagine it as applying to everyone, prompts us to consider a world without marriage or indeed without any contracts between intimate partners. In addition to opening our minds to countermarriage possibilities, this Essay shows some overlooked affinities between law and literature, in particular how both law and literature may serve as unlikely sources of regulatory innovation.

(I particularly like the irony as using laws banning same-sex marriage as a way to imagine a world without marriage at all.) This promises to be a very interesting piece, and I’d be very interested to hear what others think about it.

The ‘Spatial Turn’ in Law: June 2011 Issue of Law, Culture, and the Humanities Reply


The following is cross-posted from Legal Lacuna.

The latest issue of Law, Culture, and the Humanities contains several articles relating to legal geography, space, and territorialization. Law joins, of course, a variety of other disciplines in taking this “spatial turn.”

Here are the titles and abstracts:

Law’s Spatial Turn: Geography, Justice and a Certain Fear of Space” by Andreas Philippopoulos-Mihalopoulos

Abstract: This is a critical reading of the current literature on law and geography. The article argues that the literature is characterized by an undertheorization of the concept of space. The focus is either on the specific geography of law in the form of jurisdiction, or as a simple terminological innovation. Instead, the article suggests that law’s spatial turn ought to consider space as a singular parameter to the hitherto legal preoccupation with time, history and waiting. This forces law into dealing with a new, peculiarly spatial kind of uncertainty in terms of simultaneity, disorientation, materiality and exclusionary corporeal emplacement. The main area in which this undertheorization forcefully manifests itself is that of spatial justice. Despite its critical potential, the concept has been reduced by the majority of the relevant literature into another version of social, distributive or regional justice. On the contrary, if the peculiar characteristics of space are to be taken into account, a concept of justice will have to be rethought on a much more fundamental level than that.

Cuts, Flows, and the Geographies of Property” by Nicholas Blomley

Abstract: How is property geographical? The making of liberal property, I argue, relies upon a topographical logic, premised on the production of bounded, coherent spaces, through which the individuated subjects and objects of property can be rendered legible. Such a spatialization helps sustain the territorialization of property, in which the government of space becomes a means for the enactment of property. The production of such spaces requires conscious ‘cuts’ in the processual networks through which social spaces are produced. As such, property should be seen as a conditional achievement, ever threatened by unwanted relationality and boundary crossing. I draw from Kate Grenville’s novel The Secret River to explore property’s spaces, and their ambivalent ethical and practical work.

The Constituent Power of Architecture” by Lior Barshak

Abstract: The claim that law is grounded in representations of authority hardly requires justification. The article outlines one view of the power of representations of authority to subject society to the law, and attempts to shed light on the social significance of architecture as a medium of such representation. I will argue that representation sets apart the realms of the living and the dead while sustaining a complex relationship between the two realms. It houses the dead in a separate realm where they exercise authority over the living. Monumental architecture founds the authority of law, and the entire realm inhabited by the living, by relegating the dead to a separate sphere where they assume the position of ancestral lawgivers. Architecture can separate the living from the dead and anchor the rule of law by virtue of its claims to perpetuity and aesthetic form.

‘Passing through the Mirror’: Dead Man, Legal Pluralism and the De-territorialization of the West” by Ruth M. Buchanan

Abstract: The failures of Western law in its encounter with indigenous legal orders have been well documented, but alternative modes of negotiating the encounter remain under-explored in legal scholarship.The present article addresses this lacuna. It proceeds from the premise that the journey towards a different conceptualization of law might be fruitfully re-routed through the affect-laden realm of embodied experience—the experience of watching the subversive anti-western film Dead Man. Section II explains and develops a Deleuzian approach to law and film which involves thinking about film as ‘‘event.’’ Section III considers Dead Man’s relation to the western genre and its implications for how we think about law’s founding on the frontier. Finally, the article explores the concept of ‘‘becoming’’ through a consideration of the relationship between the onscreen journey of the character Bill Blake and the radical worldview of his poetic namesake.

Law and the Foucauldian Wild West in Michael Cimino’s Heaven’s Gateby Diana Young

Abstract: Classic western films often conceive of the west as existing in a legal void, where the central conflict is a binary one between lawlessness and legalization. The law is a monolith, and the legalization process is linear—a narrative of the west’s inexorable evolution toward a modern state governed by the rule of law. Cimino’s Heaven’s Gate presents a more postmodernist, pluralist conception. There is no grand narrative of legalization; the film envisages a discourse of justice emerging from the interaction of a variety of discourses, and which appears to be a unity only from the vantage point of history.

Law and Society Panel on Legacies of Colonialism in Indigenous Communities Reply


The following is cross-posted from Legal Lacuna.

My other favorite panel from the Law and Society Association’s Annual Meeting was Narratives of Il(legality) in Liminal Indigenous Locations, held Friday. The panel included four very moving, thought-provoking presentations on the ways colonialism and legal and cultural oppression impact North American indigenous communities today.

The first three presentations dealt with legacies of Canada’s residential schools policy, which forcibly removed aboriginal children from their homes and raised them (if you can call it that) in conditions of abuse, deprivation, and denigration.

Carole Blackburn spoke on Blackwater v. Plint (2005), which arose from widespread sexual abuse at one church-run residential school. The government and church were held liable, but liability was mitigated because the court found school officials had no actual knowledge of abuse—despite the fact that several children reported the abuse to police and nurses. Blackburn examines the cultural conditions that made abuse of aboriginal children invisible to the defendants and the court. Lack of “actual knowledge,” she argues, is really a willed “ignorance that requires active dissociation” from injustices committed against the children.

Justice Melvyn Green of the Ontario Court of Justice spoke on his experiences as a rotating judge in the Gladue Court that handles sentencing of aboriginal criminal offenders, who are overrepresented in prisons by a factor of seven. While the Court carefully considers mitigating factors specific to aboriginals, Justice Green was very forthcoming about the Court’s limitations. Sentencing, after all, is the “tail end” of the process and earlier interventions are needed. Disparities in crime and imprisonment rates are part of “an inheritance of unbridled colonialism”; they result largely from “cultural genocide” propagated by Canada’s residential schools policy.

Jane McMillan’s paper concerned unintended consequences of the Residential Schools Settlement agreement of 2007, which compensates aboriginal Canadians who can prove they went to a residential school. Part of the claims process requires victims of abuse, many of whom are traumatized and have never spoken of their abuse, to detail their experiences in writing and undergo a hearing in order to receive extra compensation. (The seventeen-page form includes an appalling page of checkboxes listing various acts of sexual abuse and how many times they were done.) This culturally and psychologically insensitive process, while cathartic and healing for some, is for others a re-victimization.

Finally, Ann Tweedy traced the racialized notion of “self-defense” in U.S. jurisprudence to illuminate current problems with Indian sovereignty and gun control. Tweedy argues that stereotypes of Indians as “savage ignobles” (which arise, ironically, from Indian’s own efforts at self-defense against white settlers) have led to a long history of curtailing Indian sovereignty. The result has been widespread lawlessness on reservations due to Indians’ inability (and U.S. Attorneys’ refusal) to effectively prosecute crimes, particularly rape of Indian women by non-Indian men. At the same time, the right to bear arms must be understood in the context of white settlers “defending” themselves against what Justice Kennedy, only a few years ago, called “Indian tribes and outlaws, wolves and bears and grizzlies and things like that.”

Law and Society Association Conference Update: Panel on the War on Terror Reply


The following is cross-posted from Legal Lacuna.

First, I am very grateful to the organizers and faculty of the Law and Society Association’s Graduate Student Workshop, which wrapped up on Wednesday. It was a terrific and inspiring program—I highly recommend it to other graduate students who do what I will affectionately call “law-and-blank” research.

Second, I attended several great panels during Days 1 and 2 of the LSA Annual Meeting (see Twitter at #LSA2011), but will detail just one of my favorites for now. Yesterday’s panel Exploring the Discontinuity in the War on Terror at the Margins and Beyond featured exciting papers by Paul E. Amar, Asli Bali, Darryl Li (a.k.a. @abubanda), and Wadie Said, with commentary by Sudha Setty.

Bali presented “Subordination by Law? Discretion and Discrimination against U.S. Muslims beyond September 11th,” which argued that since 9/11, executive branch powers have expanded alarmingly to create a de facto preventive detention system for Muslim Americans, dodging anti-discrimination laws. Bali described, among other things, two supermax-style prisons that hold terror suspects, 95% of whom are Muslim. (The rest are called “balancers,” meaning they are there to prevent—laughably—suggestions of religious or ethnic profiling.) She also points out that counterterrorism laws have effectively added aggravating factors to many minor crimes solely because the offender is Muslim; credit card fraud, for instance, has a tendency to become a terrorism-related felony if committed by a Muslim.

Li’s paper, delivered by Bali in his absence, examined “Global Civil War and American Power.” Li argues that the Global War on Terror (GWOT) operates largely outside the existing law of armed conflict, constituting a sort of “global civil war” in which US power is projected through weaker states and non-state actors. He eloquently refers to this as a “haunting of sovereignty” that does not fit traditional paradigms of either international or non-international armed conflict. Li’s evocative language and creative analysis can also be seen in his recent article, “Hunting the Out-of-Place Muslim,” which demonstrates how Muslims’ physical mobility is constructed as threatening and aberrational.

Amar’s paper, “The Human Archipelago: Human-Security States, Sexuality Politics, and the End of Neoliberalism,” traced the interplay between stereotypes of Arab “timebomb” masculinity and UN-style feminism up through the recent Egyptian revolution. Said’s paper, “The Message and Means of the Modern Terrorism Prosecution,” discussed the U.S. Supreme Court’s exceptional treatment of terrorism to contextualize Holder v. Humanitarian Law Project (2009), which codified a broad interpretation of the 2007 material support ban.

Symposium on eminent domain (and Kelo) in Albany Government Law Review Reply


The latest issue of the Albany Government Law Review (4/1, 2011) features a symposium on “Eminent Domain: Public Use, Just Compensation, & ‘The Social Compact,'” with a particular focus on Kelo and its effects of New York:

Introduction: The Judicial Reaction to Kelo, by Ilya Somin

“Fairness and Equity,” or Judicial Bait-and-Switch? It’s Time to Reform the Law of “Just” Compensation, by Gideon Kanner

The Trouble With Eminent Domain In New York, by Norman Siegel, Steven Hyman, and Philip van Buren

Urban Revitalization and Eminent Domain: Misinterpreting Jane Jacobs, by Steven J. Eagle

Moving the Cat Into the Hat: The Pursuit of Fairness in Condemnation, or, Whatever Happened to Creating a “Partnership of Planning?”, by Michael Rikon

Evaluating Economic Development Takings: Legal Validity Versus Economic Viability, by David Schultz

From Slum Clearance to Economic Development: A Retrospective of Redevelopment Policies in New York State, by Amy Lavine

The Rise of Robert Moses and the Fall of New York Constitutional Protections Against Eminent Domain, by Christopher Dunn 

Stacking the Deck: New York’s Unique Approach to Eminent Domain, by Robert McNamara

The EDPL Revised, by M. Robert Goldstein

(Crossposted at Economics and Ethics.)

Ronald Dworkin on recent Supreme Court decisions Reply


Ronald Dworkin has a two-part blog post at The New York Review of Books concerning the recent Supreme Court decisions Arizona Christian School Tuition Organization v. Winn et al and Arizona Free Enterprise Club PAC v. Bennett. (Links point to the blog posts, not the decisions.) 

In the second paragraph of the first post, he gives a wonderful and concise statement of law-as-integrity:

The popular assumption that justices can decide constitutional cases by just consulting the text of that document and the intentions of its eighteenth- and nineteenth-century authors, without relying on their own sense of justice, is simplistic and wrong. Many of the most important constitutional clauses—the First Amendment’s promise of “the freedom of speech,” for instance, its guarantee of “free exercise” of religion, and its prohibition of any religious “establishment”—are drafted in abstract language; justices must interpret those clauses by trying to find principles of political morality that explain and justify the text and the past history of its application. They will inevitably disagree about which principles best satisfy that test, and they will inevitably be influenced, in making that judgment, by their own sense of what a good constitution would provide.

But he criticizes the “conservative bloc” of the Roberts Court on these grounds:

But that does not mean that the justices are free to interpret the abstract clauses of the Constitution to match their own political convictions, whatever these are. In the last few years they have overruled a long series of recent and important precedent decisions and they have reversed several long-standing constitutional traditions. They have flatly prohibited even obviously sensible race-conscious social and educational policies, bolstered government’s support for religion, and progressively narrowed the scope of abortion rights. They have changed the American electoral system to make the election of Republican candidates more likely, for example by guaranteeing corporations a constitutional right to spend as much as they wish denouncing candidates they dislike. As I have argued, these various decisions cannot be justified by any set of principles that offer even a respectable account of our past constitutional history.

That’s what I love about Dworkin, and part of what makes him so much fun to teach: you can agree wholeheartedly with hsi formal jurisprudence but I disagree just as strongly with the way he fleshes it out substantively. (More on this, I hope, in future posts.)

Daring Rescues, Dead Babies, and ‘Another Vietnam’ 3


A big thank you to Warren Emerson and The Literary Table for welcoming me. I’m excited to be joining the interdisciplinary fun on this blog. The following is cross-posted from Legal Lacuna:

As Americans debate the recent “humanitarian” intervention in Libya, I am reminded of an NPR feature that aired last year. In the fall of 2010, NPR’s All Things Considered told the story of the U.S.S. Kirk, a small U.S. naval ship that, at the end of the Vietnam War, conducted an unusual humanitarian mission.

On April 29, 1975, as Saigon fell, the Kirk and its astonished crew were sent to retrieve thousands of refugees who were fleeing South Vietnam by boat and helicopter. The next day, the Kirk returned to “rescue . . . the remnants of the South Vietnamese navy,” about thirty ships that constituted the last sovereign South Vietnamese territory. The “rescue” of the navy was effected by lowering the South Vietnamese flag and raising the U.S. flag on each ship, transforming it into sovereign U.S. territory. Anthems were sung. Tears were shed. A Vietnamese baby who died of fever was mourned by all aboard the Kirk. All ended well, with the refugees resettled in the U.S. and elsewhere.

The story, explicitly a redemption narrative, says a lot about Americans’ view of themselves as citizens of a military superpower, particularly in relation to the “Orient.” NPR resurrects and rewrites that other Vietnam narrative, the one usually characterized by destruction, grief, and moral failure, into a tearful rescue. The story contains all the ingredients for an American comeback on the world stage: grateful Asian refugees, brave (and hitherto unsung) American heroes, and the distinctly harmonious, shared mourning of a Vietnamese baby—an innocent, civilian “other” who dies not because of U.S. violence, but in spite of U.S. medics’ efforts to save him from illness.

It is significant that this story appeared at a time when the U.S. was engaged in two seemingly interminable, geographically vague conflicts in the Middle East/western Asia. For most of the last decade, Americans have been haunted by a discursive ghost, that nagging refrain: “We don’t want another Vietnam,” an expensive, bloody, ideologically-motivated conflict against an enemy whose low-tech warfare somehow overwhelms the U.S.’ “modern” might. This was even before the “Arab Spring” came with its tech-savvy hopefulness and its double edge of democracy and violence; we were tired of the same, old War on Terror.

NPR, in fact, gave listeners “another Vietnam,” much better than the one we remembered. Foregrounding the U.S. military’s humanitarian functions, the story of the Kirk momentarily absolves the U.S. of its other actions. The story serves as a palliative to widespread American anxieties about war, territory, immigration, and imperialism. It enables a transformation of grief caused by human conflict into grief for the lost child, who functions as a cipher for innocence and the will of God. As we cry with nostalgia and pride at the raising of U.S. flags over South Vietnamese navy ships, we are also reassured that there is such a thing as colonialism by consent.

We live in a murky world where military action causes more violence, even as it saves lives. As listeners to the NPR story, we glimpse ourselves among the refugees, rescued from the horror of real war, seeking shelter aboard the Kirk.

Mai-Linh K. Hong is pursuing a Ph.D. in English at the University of Virginia and holds a J.D. from the U.Va. School of Law. She tweets from @FleursduMai and @LegalLacuna.

Analogy & Metaphor: An Idiosyncratic Introduction Reply


I’ve just posted my essay, “Analogy & Metaphor: An Idiosyncratic Introduction,” at SSRN. Here’s the abstract:

This essay is an idiosyncratic introduction to analogy and metaphor. It was previously posted in two parts respectively at the Ratio Juris and The Literary Table blogs by way of an introduction to my online bibliography at Ratio Juris for analogy and metaphor. The notes immediately follow each essay, and a list of “references and further reading” is appended to the end of the paper. The section on analogy is intended in part to provoke the interest of legal theorists, while the second half, on metaphor, is aimed at a broader audience although I hope it too will be of interest to legal theorists and philosophers of law. Both pieces no doubt betray their origins in blog posts, hence they are considerably less than polished, but comments to date were generous enough for me to make the inference that they deserve to be made more widely available.

My maiden voyage with SSRN just prior to this was a revised version of a Ratio Juris post from earlier this year:  Natural Law “Externalism” v. Law as “Moral Aspiration.” I want to thank Thom Brooks for prompting me to think aloud about topics broached in his paper, “Natural Law Internalism.”

I welcome comments (and downloads!) for both papers.

Narrative Goodness 1


The first passage below is from Colin McGinn’s book Ethics, Evil, and Fiction (1997). I’ve chosen it by way of prompting reflections on how we learn to be moral (I’m going to ignore here any putative distinction sometimes made between ethics and morality, indeed, I think it’s only relevant when the latter concept is used in a descriptive sense, while I’m here relying on a normative conception of what’s ethical or moral). From a Platonic perspective, it may be the case that, for the individual, learning to live an ethical life is not first and foremost a matter of being taught how to be ethical, say, in the manner in which one is taught the rules of grammar, or the facts of geography, or the names of birds. In other words, and in a peculiar sense, ethical understanding or moral knowledge is a different kind or peculiar sort of knowledge, at once both robustly objective and subjective, involving both a “knowing that” and a “knowing how” (that is, both propositional and non-propositional knowledge) in a way not conspicuously intrinsic to most things we conventionally group under the rubric of “knowledge.” All the same, Plato does seem to have held that we learn to be moral, that we can become, as Aristotle taught us, habituated to virtue, that we can learn to live virtuous lives (and such virtuous living is not necesssarily confined to lives in the familial and intimate realms of daily life, for its standards are equally relevant to arenas of collective action or the public realm). I hope to speak to this question again in a future post that builds upon the material broached here so suffice for now to keep in mind that any references to “teaching” or “learning” to be moral may be qualified if not clarified so as to incorporate and reconcile what Plato (or Socrates) meant in the Meno by claiming that virtue cannot be taught with the ostensibly contrary message in the Protagoras that argues for the “teachability of virtue.”

“[O]rdinary people—which means all of us—find [the] story mode of moral discourse [i.e., the form which includes parable, the play, short story, the narrative poem, the novel and the film] uniquely palatable and nutritious; it seems perfectly designed to engage our moral faculties. Our moral understanding and the story form seem fitted for one another. No rote learning is necessary: it all seems to flow quite naturally. This is the way our moral faculty likes to operate. It is almost effortless to take in a story, pleasant even, though the story may be replete with moral discourse. The novel, in particular, is a text of a very different kind from the scientific treatise. It is also very different from the philosophical text, which is what philosophers, naturally, are most comfortable with. Thus the novel form has tended to be ignored by moral philosophers: it is not, for them, the place to look for canonical expressions of ethical truth. Yet, quite obviously, it is for most educated people one of the prime vehicles of ethical expression. (Film plays a similar role for the less word-minded.) In reading a novel we have ethical experiences, sometimes quite profound ones, and we reach ethical conclusions, condemning some characters and admiring others. We live a particular set of moral challenges (sitting there in our armchair) by entering into the lives of the characters introduced. [….] Stories can sharpen and clarify moral questions, encouraging a dialectic between the reader’s own experiences and the trials of the characters he or she is reading about. A tremendous amount of moral thinking and feeling is done when reading novels (Or watching plays and films, or reading poetry and short stories). In fact, it is not an exaggeration to say that for most people this is the primary way in which they acquire ethical attitudes, especially in contemporary culture. Our ethical knowledge is aesthetically mediated.”

I think McGinn’s conclusion is largely correct: our ethical knowledge is, indeed, “aesthetically mediated,” insofar as we learn about the virtues (whatever particular cluster of same our worldviews place emphasis upon), or how to be moral through narrative aesthetic forms. And such story forms are not just “secular,” for they are often the products of religious traditions. In fact, I happen to believe that for many individuals who at least nominally identify with religious worldviews, this aesthetic mediation assumes in the first instance a spiritual form (‘spiritual’ because its meaning is a bit wider than what we typically denote by the adjective ‘religious,’ and thus, for instance, we can include under this heading the Hellenistic ethical ‘therapies of desire’ as defined by Martha Nussbaum). Furthermore, to the extent that such aesthetic mediation is not “spiritual” or religious, I would contend it is less reliable or dependable as a form or medium of moral knowledge or ethical instruction, especially but not only when we are young. Put differently, spiritual and religious literature is ideally suited for the aesthetic mediation of moral knowledge, for learning what it means to be virtuous, for it is here we find “exemplars of goodness.” It is not the only or even primary way in which we learn to be moral, for we obviously and ideally learn to live a virtuous life, as both Confucius and Plato would remind us, from those who are responsible for our upbringing: our parents, caregivers, teachers, and others who are, it is hoped, suitable “role models,” those entrusted to take care of us until we reach the “age of reason.” Intriguingly, both Plato and Confucius appear to agree that learning to be ethical for children entails a training in the arts, particular arts to be sure, but there is something about the arts that these two philosophers find integral to the habituation to virtue, as a necessary yet not sufficient condition to being moral. And even as adults, we might learn something about virtuous living from those with whom we come into meaningful personal contact in daily life:

“It is not implausible to think we are elevated by others who are more developed than ourselves in their striving for harmonious hierarchical development and for a valuable life. We are aided and encouraged along our own path of development by their striving for self-development and purer feeling; contrast the effects on us of encountering those with a sour mixture of one-upmanship, self-aggrandizement, desire to dominate or destroy, and other festering emotions, the effects of wending our way and bending our attention to their motivations and trajectories. [….] We all know people, I hope, who bring out the best in us, people in whose presence we would be embarrassed to speak or act from unworthy motives, people who glow. In their presence we feel elevated. We are pushed, or nudged further along a path of development and perfection; rather, we are inspired to move ourselves along, in the direction shown. [….] We want to find a way of living whereby our best energies and talents are poured out so as to speak to and improve the best energies and talents of others. We want to utilize our highest parts and energies in a way that helps others to flourish.”—From Robert Nozick’s Philosophical Explanations (1981)

In her book, Divine Motivation Theory (2004), the philosopher Linda Zagzebski makes an argument for what she terms a “direct reference” theory of the good. I will not go into the philosophical background and specific premises of her argument but want to invoke it in support of the idea that one of the primary ways by which we learn to be moral is through stories of one kind or another, narratives in which we learn about what it means to live a “good life:”

“I have proposed that ‘good’ is defined by direct reference. If so, it is plausible that ‘good life’ is defined by direct reference as well. It is a life like that, which is to say that we know it when we see it [Plato has some things to say about how this is possible]. Describing lives is one of the functions of literature and biography. [….] If we defined the good life as a life like that, we do not do it independently of referring to persons whose lives we want to imitate. We imitate persons we regard as exemplars, and we imitate lives we regard as exemplary, and these are not independent activities. [….] So what is a flourishing life? I propose that it is determined by what the exemplars say it is. [….] The exemplars make the determination of good lives in the hard cases. If ‘good life’ is defined by direct reference independently of a ‘good person,’ then the life of a good person can come apart from a good life. However, if I am right, that is not the way these concepts work. The lives we want to imitate are lives of persons we want to imitate.”

One lesson we might—or should—draw from Zagzebski’s proposal is that our choice of narrative sources for “exemplars” is fraught with consequences. For example, are contemporary novels, or films for that matter, invariably stocked with characters or protagonists who we might christen “exemplars” of the good life, of characters who exemplify virtuous living? And even if frequently bereft of such characters, might these stories nonetheless have some role to play in clarifying what the struggle to live morally entails, of what the moral life involves, of the relation between evil and the good, or the obstacles and difficulties faced in attempts, among people like us (so to speak) to become virtuous? After all, the vast majority of us are not living lives that call to mind a Socrates, the Buddha, Jesus, St. Francis, Dorothy Day, Maimonides, or “Friends of God” in the Islamic tradition. The hoi polloi, in other words and by definition are not prophets, saints, ascetics, seers, sages, or simply pious and wise teachers. At the same time, save Jesus’ Christian theological status as God incarnate, these exemplary spiritual figures are men and women who provide us with concrete models of human goodness, of what it means to live a spiritually flourishing life, of how to simultaneously engage in the processes of individual self-discovery and self-actualization, of how to incarnate and express moral and spiritual values, not in the sense of slavish and literal imitation but as inspirational exemplars worthy of ethical emulation in the widest sense as part and process of psychological and spiritual (or eudaimonistic) individuation.

The problem of moral development is the problem of discovering the conditions necessary and sufficient for the manifestation of the virtues and the actualization of value(s). Each person is morally obligated, from the perspective of virtue ethics, to sincerely and persistently endeavor to actualize, conserve and defend those values he or she identifies with as the product of self-examination and the prerequisite of self-direction and self-realization. The specific cluster of values so identified may (and usually does) vary from person to person and no one individual is capable of realizing all such values, although one might nonetheless recognize and appreciate all values (or value as such), especially insofar as these values have become identified with other individuals. Individual values identification brings in its wake the intrinsic and intangible rewards of personal fulfillment and flourishing. We are all alike with regard to values-potentialities by virtue of our human nature, but we differ, owing to genetic inheritance, upbringing, circumstance and so forth in the manner of values-identification and actualization. We might see this as the interdependence of value-actualizers, serving to confirm our inherently social nature as human beings. Such interdependence, furthermore, is capable of (has implications for) filling out the meaning of true community.

Perhaps contemporary literature (at least some of it) provides us with the narrative and biographical equivalent of “middle terms” that modulate for us the gap between ideal (and idealized) moral and spiritual virtues, and the morally messy lives lived in the shadows of such overwhelming or intimidating goodness: most of us cannot “stare” into the Sun, the Platonic metaphor of the Good in the Allegory of the Cave, but we can nevertheless look upon, and thus learn from, that which it illuminates. And even if one attains the Platonic vision of the Sun at the summit of dialectical ascent, one is obligated in Plato’s account to return to the Cave, to make the corresponding dialectical descent into the realm of particularity and the concrete, the world of the “ten thousand things” (wanwu) in Chinese philosophy, and it is with that world our contemporary novelists and filmmakers can be fairly said to be well acquainted, if sometimes or even often in a confused or uncertain manner, at least with regard to ethical values and moral insight. The extent to which we envisage contemporary literature, or any narrative vehicle, playing such a role appears to importantly depend upon our ability to make aesthetic and ethical discriminations and judgments as to what is morally and spiritually availing, another issue Plato addressed in as much as he asked how we can come to recognize goodness unless we are not already, in some intuitive or inchoate but no less real sense, in possession of or have some acquaintance with such goodness.  

In a future post I hope to expand upon some of the ideas and themes introduced and sketched here in a preliminary fashion.

 [Cross-posted at ReligiousLeftLaw.com]