Two new papers on punishment (Murtagh and Brooks) 1

Very interested by two new papers on punishment I just found:

1. Kevin Murtagh, “Is Corporally Punishing Criminals Degrading?” (forthcoming in Journal of Political Philosophy)

We routinely punish people in ways that cause them immense amounts of psychological suffering. Our current punishment of choice, imprisonment, causes this suffering by imposing drastic restrictions on liberty and disrupting the relationships, activities, and projects that bring happiness and meaning to people’s lives. We tend to find this regrettable, yet justifiable. However, if there is talk of punishing by inflicting physical pain, many people react with outrage, and assume that such a punishment would be barbaric, uncivilized, and degrading. I find this assumption to be highly dubious, and in this article I will defend the practice of corporally punishing criminals against objections that claim that it is degrading. Although I find these objections problematic, they are among the most plausible, and therefore merit close consideration in a philosophical discussion. At the outset, I will briefly list some problems with imprisonment and show that corporal punishment can help us to address them. After a few more preliminary remarks, I will discuss the conception of degrading punishment that I will be working with. Then I will articulate the main “objections from degradingness” by examining the claims of critics of corporal punishment and other practices that resemble it in certain respects. I will then respond to these objections and show that they fail to demonstrate that corporal punishment is degrading. The article will conclude with some general remarks on the topic and suggestions for future research.

2. Thom Brooks, “Autonomy, Freedom, and Punishment” (forthcoming in Jurisprudence; HT to Larry Solum)

In Punishment and Freedom, Alan Brudner offers an important contribution to how we understand retributivism and legal punishment with his theory of “legal retributivism.” One aspect of his legal retributivism is that we punish others not necessarily for the harms they threaten or enact, but for their threat to our individual autonomy. There is much promising in this account, although I believe that there are some significant concerns which remain. This essay will explain these concerns and why they may prove troublesome for legal retributivism.

Metaphor: An Introduction 1

The following is the second half of an installment begun at the Ratio Juris blog in which I introduce analogy (Part 1) and metaphor (Part 2) in conjunction with posting of my select bibliography for same: Analogy & Metaphor: A Select Bibliography and Introduction, Part 1. As I was having problems posting it there I thought it would be equally appropriate here at the Literary Table. Be forewarned: it is fairly long.

Philosophers have repeatedly insisted, both in defense and in dismissal of metaphor, that it is deeply different from literal communication because it is indeterminate, complex, rich, evocative, and openended. They have failed to notice that not all metaphors fit this model, and that much literal speech does.—Elisabeth Camp (2006b: 21)

Metaphor is at once fully aesthetic and fully semantic. It is fully aesthetic, in that its production calls for artistry and its understanding calls for taste. Without some minimal sensitivity to certain aesthetic values, we’d be deaf and dumb when it came to metaphor. Metaphor is fully semantic, in that it constitutes one of our most basic and indispensable strategies for equipping words and phrases with referents, equipping sentences with truth conditions, equipping utterances with speech act potentials, and so forth. If we were completely deaf and dumb when it came to metaphor in particular, we’d be as good as deaf and dumb across the board. Our possession of language, not just our enjoyment of it, would be disastrously compromised.—David J. Hills (2006b)

[E]ven the most austerely ‘scientific’ models operate through analogy and metaphor. The Rutherford-Bohr model depicts hydrogen atom as a miniature solar system. Darwin’s concept of ‘natural selection’ is analogous to the ‘artificial selection’ practised by animal breeders. ‘Plate tectonics’ is about thin, flat, rigid areas of ‘crust’ floating on a highly viscous but fluid ‘mantle.’ Linguists talk of the ‘brain mechanism’ by which grammatical language is generated. And so on. Scientific theories are unavoidably metaphorical. [….] Sometimes a ready-made model can be taken over from another branch of science—for example Fresnel’s model of light as the vibration of an elastic medium. Sometimes the key elements come out of everyday life, as in von Neumann’s model of economic behaviour as a ‘game,’ or the molecular-biological model of DNA as a genetic ‘code.’ This heterogeneity is not a serious defect. The scientific value of a theoretical model, as with all metaphors, does not require it to be literally equivalent to the system it represents. It resides in the variety of phenomena that it makes plain, or suggests. This understanding seldom comes through elaborate formal analysis. [….] Indeed, analogy and metaphor cannot be driven out of scientific reasoning. Scientific ideas cannot be communicated through the ‘literal’ medium of formal logic. [….] [In fact], the history of a scientific discipline can be traced through its changing repertoire of models and metaphors—what Gerald Holton calls its themata. Modern physics, for example, deals in ‘forces’ and ‘fields,’ or ‘waves’ and ‘particles,’ and has no place for pre-modern themata such as ‘sympathies,’ and ‘attractions,’ or ‘essences’ and ‘effluvia.[….] It is clear that scientific maps, models, metaphors, themata and other analogies are not just tools of thought, or figures of speech. They are the very substance of scientific theory. As sources of meaning and understanding, they stand on equal footing with explicit verbal and symbolic representations.—John Ziman (2000: 149-150)

Having introduced analogy and analogical reasoning in Part 1, here we’ll do the same for metaphor, a far more difficult topic to tackle, and no less so even if our aim is only, as it is here, to provide a taste of the subject matter. If metaphor is construed as involving a gap between the conventional meaning of words and their occasion-specific use, its analysis would appear to fall largely within the rubric of pragmatics (or ‘speaker’s meaning’) rather than semantics (the meaning of an utterance or sentence in a given language and involving ‘truth-‘ or ‘assertibility conditions,’ i.e., epistemic justification). But if we think of metaphor as somehow continuous with literal speech (which need not deny a ‘contextualist’ component: metaphor as a contextually variable semantic meaning), semantics earns pride of place in the first instance, and thus pragmatics is parasitic upon semantic analysis, such analysis a necessary condition yet perhaps not a sufficient condition for understanding metaphorical utterances. Pragmatics clearly has something to contribute to an understanding of metaphor for, as Elisabeth Camp (2009: 265) explains, “the same sentence can receive dramatically different metaphorical interpretations in distinct contexts. For instance,

‘Juliet is the sun.’

will be interpreted differently when spoken by Romeo (very crudely, as meaning Juliet is beautiful), by his friend Benvolio (Juliet is dangerous) and by his rival Paris (Juliet is the most important socialite in Verona).” Relatedly, metaphorical utterances have been associated with Gricean implicature (Grice 1975), although a body of work suggests metaphor is more often about “direct and explicit” meaning, that is, about “what is said.” All the same, recent research about the “mental processing of unfamiliar and  novel metaphors does find something like Gricean “indirectness” applicable: “it seems plausible to take ‘indirectness as claiming that a good rational reconstruction of successful metaphorical communication will first rule out a literal interpretation as being contextually inappropriate, and also appeal to that literal meaning in determining the speaker’s intended meaning” (Camp 2009: 265). Camp proceeds to enumerate a number of reasons why we might not want to assimilate Gricean implicature to metaphorical understanding, in other words, against treating metaphors simply as implicatures.

In speaking of semantics and pragmatics, we’ve begun our discussion within the framework of philosophy of language[1], a field that has engaged some of the best philosophical minds of our time. Yet it is not the preferred starting point among the more popular academic treatments of metaphor, which favor vantage points provided by linguistics and cognitive psychology, or “cognitive because conceptual” accounts of metaphor, while accounts in which metaphor is in the first place a linguistic phenomenon and frequently “cognitive” in a broader sense, are found among philosophers of language (this does not rule out the possibility there are, increasingly, exceptions to this division of labor and one should not read too much into the labels, especially before examining the respective arguments in detail). Let’s take a moment to look at a few of the actual and possible relations between philosophy and cognitive science, if only because the “conceptual” accounts and accounts in which metaphor is about a “figure of speech (i.e., a non-literal use of speech within a class that includes irony, metonymy, synecdoche, hyperbole, and meiosis) and sometimes even “non-cognitive,” tend to fall out into science and philosophy respectively, although philosophers like Camp have proven adept at appreciating the relative epistemic virtues found among all the parties in this discussion. Philosophers who collaborate with researchers from the sciences often uncritically defer to their scientific colleagues, at least in the sense that they do not thoroughly examine or question the fundamental conceptual and philosophical presuppositions and assumptions that undergird (psycho)linguistics or cognitive science. Instead, they assume the role of the Lockean “underlaborer” for the natural sciences, to adopt a term from the idealized distinction drawn by Steve Fuller (2006) (and first used by Locke and later part of Roy Bhaskar’s ‘critical realist’ theory of science) between the “philosophical legislator” “who questions the presuppositions of ongoing scientific research” (cf. Bennett and Hacker 2003 with regard to neuroscience), and the “philosophical underlaborer, whose role is one of clarifying and defending the presuppositions and assumptions of a particular scientific research program.

The philosopher as underlaborer is close to Paul Thagard’s (2009) proposed conception of the indispensable role of philosophy for cognitive science: philosophy does and should continue to contribute “generality” and “normativity” to an interdisciplinary field like cognitive science. Generality betrays a concern for the “unity” of the sciences (such as that traditionally purchased by commitments to reductionism or naturalism or represented by E.O Wilson’s notion of ‘consilience’), hence it “attempt[s] to address questions that cross multiple areas of investigation, thereby helping to unify what otherwise appear to be diverse approaches to understanding mind and intelligence” (or nature and reality, for that matter) (Thagard 2009: 238). Normativity is necessary because cognitive science, in performing its descriptive work, may assume or imply how people “ought” to think and act, and thus philosophy can assist science in making explicit this unavoidable normative and prescriptive enterprise; as Thagard rightly says, “Cognitive science often assumes epistemological and ethical norms without adequate philosophical discussion” (246). While Thagard’s model would appear to soften the distinction between the philosophical legislator and underlaborer insofar as it takes on board the question of normativity, he makes it clear that the role of the underlaborer does not aim to provide philosophical (e.g., metaphysical) foundations for any of the sciences (although reference to same is unavoidable insofar as we’re anxious to demonstrate the ‘unity’ of the sciences) and, what is more, it does not see itself as involved in clearing up any alleged “conceptual confusions in the study of the mind” (238). Thus, for example, philosophy of mind has no privileged role vis-à-vis cognitive science, that is, unless it’s inclined toward scientism or is unabashedly scientistic: “Philosophy can be…useful to cognitive science in providing defenses against philosophical arguments challenging the core assumptions of cognitive science concerning representation and computation. In this way, philosophy can provide self-defense methods for cognitive scientists against philosophers critical of the whole field” (238).

I think this envisages an unduly deferential and defensive role for philosophy in relation to (cognitive) science. It’s not that one can’t imagine a philosopher justly playing the part of an underlaborer, but the underlaborer model hardly does justice to the various roles philosophy might assume in relation to cognitive science or any other natural or social science. We’ll return to some of these issues near the end of our introduction, but for now it helps us appreciate why some philosophers have been critical of the immensely popular conceptual theory of metaphor within cognitive linguistics first formulated by Lakoff and Johnson (1980 and 1999), and have chosen instead to examine metaphor from within the parameters provided largely by philosophy of language (without in any way belittling the pioneering contributions of Lakoff and Johnson). In effect, they have not seen their role as constrained by the model of the “underlaborer,” thus they frequently point out contestable presuppositions and assumptions from perspectives provided by philosophy of language or philosophy of mind (and those perspectives need not be ‘consensual’ within these branches of philosophy).

This “big picture” is especially important for legal theorists to consider, given their historic tendency to embrace with unbridled enthusiasm this or that finding from the latest scientific enterprise or research program: the empiricism of legal realism, the rational choice model of neo-classical economics, behavioral economics, social psychological “situationism,” cognitive linguistics or cognitive science in general, evolutionary psychology, and so forth and so on. And this enthusiasm is not even tempered by awareness of methodological doubts, discussions and debates within the social sciences themselves! By way of illustration, we need only read Dennis Patterson’s (2003) review essay—aptly titled “Fashionable Nonsense”—of Amsterdam and Bruner’s Minding the Law (2000) and Winter’s A Clearing in the Forest: Law, Life, and Mind (2001), to be apprised of some of the more glaring philosophical pitfalls and blind spots that result from uncritical reliance on the latest scientific literature from a popular or (potentially) interdisciplinary field of study, evidenced of late among legal theorists in the fawning over the latest findings of neuroscience (see Pardo and Patterson 2010). Given the structurally “conservative” character of legal systems and institutions, it’s perhaps not surprising that legal theorists look to science by way of analyzing the law, especially owing to the difficulty of having anything original or creative to contribute to analytic jurisprudence or traditional philosophy of law, which still pivots around questions generated from  well-worn debates between theorists of natural law and legal positivism.

Scientific literature, by its very nature, is ripe for exploitation by legal theorists, providing a veritable endless resource pool of potential research topics for bringing to bear fresh perspectives on the law: after all, science deals with the enormous complexity of both the natural and social worlds, encompassing what, after Nicholas Rescher (2000), we might characterize as the “cognitive inexhaustibility of things.” The scientific enterprise transforms what at first glance appears as a liability, namely, the “cognitive opacity of real things” (including the fact that we will never be ‘in a position  into avoid the contrast between things as we think them to be and things as they actually and truly are’), into an intellectual and disciplinary virtue: “[the] susceptibility to further elaborate detail—and to changes of mind regarding this further detail—is built into our very conception of a ‘real thing’”(Rescher 2000: 31). If the “ongoing process of information enhancement” intrinsic to the scientific endeavor entails a concomitant process of “conceptual innovation,” legal theorists will find it hard to resist the temptation to turn to science by way of tilling and cultivating fertile fields of research (one might say they are, metaphorically and otherwise, the academic equivalent of post-colonialist capitalists or ethical cosmopolitans in the era of neo-liberal globalization: they are well poised and positioned to engage in cross-disciplinary cognitive trades and raids). The progress of scientific knowledge is marked by the “proliferation of ever more restructured specialties,” which in turn prompts attempts at interdisciplinary synthesis. Attempts at interdisciplinary synthesis are naturally attractive to legal theories cognizant of the non-linear character of legal systems and institutions, for they require holistic and comprehensive inquiries belied by scientific models bound to the parsimony of Ockham’s razor. Conditions of opacity and complexity are quickened for legal theorists who look to both the natural and the social sciences, the latter marked by need to explicitly address questions arising from the nature of consciousness (or, more broadly, subjectivity), intentionality and normativity, questions that invariably bring the social sciences within the province of philosophy.  Unlike their counterparts in the natural sciences, who more often than not can go about their work with little attention devoted to the philosophy of science, taking the Lebenswelt more or less for granted, social scientists, and legal theorists after them, cannot (or should not) avoid deliberately confronting what, at bottom, are difficult philosophical topics on which there exist a proliferation of plausible perspectives, indeed, so much so that it can undermine the credibility of “expertise:”

“Economists, for example, are notoriously at loggerheads on the explanation of how modern commercial culture actually ticks. Even when they are not uttering the wishful thoughts of a political party or sector of industry, they do not produce knowledge which a sensible person ought to trust unreservedly in deciding to build a factory or buy a block of shares. [….] [M]any university-based researchers are now so reliant on government contracts for research on practical problem that they cannot easily dissociate themselves from government policies. [….] In effect, to obtain resources for research, many post-academic human scientists are forced to relaunch themselves as technical consultants. They compete with one another for research projects on political, social or industrial problems commissioned by private or public organizations. Very often, however, their research findings and expert advice are desired as much to rationalize a particular policy on a contentious practical matter as to present an independent analysis of the situation.” (Ziman 2000: 177-178)[2] 

All of this by way of an indirect apologia on behalf of a view closer to the “philosopher as legislator” model, in other words, in defense of an introduction to metaphor by way of a few philosophical accounts, albeit accounts that are not non-cognitivist in any polemical or agonistic sense. While an avowed bias for pragmatics in the study of metaphor finds common ground among philosophers and cognitive scientists, philosophers of semantic suasion, notably Josef Stern (2000), have brought renewed philosophical respectability to “Literalist” (v. ‘Contextualist’) accounts of metaphorical interpretation.[3] While earlier and well-known analytic accounts of metaphor by the likes of Max Black[4] and Donald Davidson thought truth-conditions were irrelevant to metaphorical interpretation, both contemporary Contextualists and Literalists concur in the belief that metaphors express truths of a kind, the differences centered on the precise determination of the truth conditions of a metaphorical utterance, perhaps an implicit reference to the fact that we cannot abandon the dependency of the metaphorical on the literal in making such a determination. Indeed, there are, as Stern (2008) has argued, “semantic constraints on both metaphor and deferred reference imposed by the meaning of the literal vehicle.” And in the spirit of Black’s seminal thoughts on metaphor, Stern notes “how a metaphorical mode of expression can bear a kind of information apart from its truth-conditional content that carries explanatory power in belief-ascriptions” (Stern 2008: 276-277). At the very least, it would seem those who identify with Contextualism or Pragmatics will have to concede one facet of Stern’s Literalist brief: “that metaphorical interpretation falls in part under semantics” [emphasis added]. Stern’s analysis in fact softens the boundaries between Pragmatics and Semantics, for his theory of metaphorical meaning “takes into account both its context-dependence and literal dependence:”

“[T]he different metaphorical interpretations that utterances of one expression (type) can express in different contexts and on different occasions are their (propositional) contents, the factors that bear on the truth-value of their utterances. Because the individual features (e.g., being greater than her peers for ‘is the sun’ [as in ‘Juliet is the sun’]) expressed in these contents depend in part on the speaker’s extra-linguistic skills and presuppositions, the contents of these metaphorical interpretations are not themselves known solely in virtue of semantic competence. But it does not follow that metaphor lies entirely outside semantics. What the speaker does know in virtue of his semantic knowledge is the character of the metaphor, that is, a rule or directive to map the parameter of the context into the content of the metaphor in that context. Metaphorical character constrains which contents can be metaphorically expressed by which expressions in which contexts. And insofar as the function of meaning is generally to constrain which intentions can be expressed by which linguistic items on which occasions, we can takes its character to be the meaning of a metaphor.” (Stern 2008: 270)


Thoughts from the mothership and other bits of randomness Reply

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The Literary Table on the iPad. Check out the new site on the iPad.  When you go to the Literary Table you will see a flip style app.  Just go to the and check out the magazine style flip board.

Update on the Zotero Project. I have recently updated the Zotero Project by adding a page for Robert Penn Warren. If you are not a member of the Zotero group join the group here and add to our collection!  You can also subscribe to the Literary Table’s Zotero feed here!

Lost Property and finding its owners. Watch this great video from Youtube.  This is really enjoyable.

And then its follow up:

And the conclusion:


Psychology, literature, and the criminal mind 3

Thanks to my friend Piers Steel, I found this fascinating article on the use of literature as therapy for convicts. More broadly, the piece points out the benefits of interdisplinary approachs to humanities and sciences, by detailing the beneficial psychological effects of the lessons of literature. (This is preaching to the choir a bit here, I know, but as I’m currently writing a piece on moral psychology and crime, I found it particularly fascinating.)

Law Professors and Laws of Slavery 10

I would, first of all, like to applaud all the contributors for the renewed activity on this fine blog, and second of all to extend my welcome to Mark D. White.  Welcome, Mark!  Glad to have you at the table.  I missed you at the Association for the Study of Law, Culture & Humanities conference, but I hear that you did a great job. 

My post today is something of a brief historiographical essay that ends by posing some critical questions for legal academics.

Kenneth Stamp published his landmark study The Peculiar Institution (New York: Alfred A. Knopf) in 1956, thus inaugurating the institutionalized and concerted efforts of scholars to examine the history of slavery in America with greater detail.  Research and study of the history of slavery then gained momentum in the 1960s.  One of the seminal texts from this period was David Brion Davis’s The Problem of Slavery in Western Culture (Cornell University Press, 1966), winner of the 1967 Pulitzer Prize for General Non-Fiction.  An ambitious undertaking, this book seeks to demonstrate the continuity of slavery through various times and places in Western Civilization.  A legitimizing narrative or logic always accompanies the institution of slavery, Davis suggests, but such narrative or logic—or narrative logic—is fraught with paradoxes threatening to undermine the institution altogether.  How, for instance, does one reconcile the ideals of freedom and equality, so celebrated by American Revolutionaries, with the pervasive reality of human bondage?  How does one make sense of a Christianity that both condemns and justifies slavery?  How can slaves be humans—rational agents with free will—and chattel property at once?  How does ending the slave trade worsen conditions for the enslaved?  If enslaving infidels, and only infidels, is valid by law and church teaching, then how do European colonists validate the enslavement of converted Africans?  How can colonists rely heavily upon an institution that they fear?  How can one of the earliest American colonies to oppose slavery (Georgia) become a hotbed for slavery?  If, according to law and church teaching, only pagans can be enslaved, why are not Natives enslaved as frequently or as much as Africans?  For that matter, why do early objections to slavery focus on Natives, who are less likely to become slaves than blacks?  Why do colonists insist on Christianizing slaves yet fear converted slaves?  How does the antislavery movement develop out of the very ideology sustaining slavery?  How do notions of sin both justify and subvert the institution of slavery?  Why does the Age of Enlightenment, with its celebration of reason, humanism, and liberation, intensify rather than disparage slavery?  And how can the New World, a putatively progressive landscape, rely on and perpetuate an ancient institution?  These and other questions permeate Davis’s provocative text.  Davis does not try to resolve these apparent contradictions so much as he explores them through various persons, places, and patterns; in so doing, he describes how human bondage gets revised and extended from one age to the next, and how justifications for slavery in one era inaugurate justifications for slavery in later eras. 

Davis’s book departs from trends set by historians such as Stanley Elkins.  A paradigm shift away from the “Phillips School” of historiography—which looked sympathetically upon plantation life in the Old South—Elkins’s Slavery: A Problem in American Institutional and Intellectual Life (University of Chicago Press, 1959) charts the rise of slavery in early America and argues, controversially, that the infantilization of American slaves by slave owners and overseers was akin to the psychological tactics that Nazis deployed in concentration camps.  Any comparisons with Nazi Germany are suspect and tend to raise more questions than they resolve.  How, for instance, do property and property law in American slavery relate to the Nazi investment in bodily economy?  How did the ideology of Southern slaveholders vis-à-vis the ideology of Europeans in other countries during the late eighteenth and early nineteenth centuries contrast with the ideology of Nazis vis-à-vis the ideologies of other European countries during the Nazi era?   Elkins runs up against this problem by overstating, in part III in particular, the ideological similarities between American slave-owners and Nazi leaders.  In terms of time and geography, this comparison does not stand up to scrutiny.  At any rate, unlike Elkins, Davis contextualizes slavery by the historical events leading to and immediately following slavery in America, the West Indies, and Brazil, drawing from sources directly linked to these slave systems rather than generalizing about recent events only tangentially or conceptually related to American slavery, an institution balancing on a different ideological fulcrum than did Nazism.          

Davis argues that the basic characteristics and structures of slavery remain unchanged throughout Western history, even if the particulars of slavery—say, slave laws or notions of racial superiority—take on new forms in new sociopolitical environments.  Davis’s text appears in the wake of scholarship “less content with theories of progressive currents washing away the dregs of an evil past” and more interested in “the relations between ideology and social structure” (28).  Although Davis applauds then-recent scholarship for bringing “rewarding insights,” he cautions that it tends “to divert attention from the fact that Negro slavery in the eighteenth and nineteenth centuries posed a genuine moral problem that reflected deep tensions in Western culture and involved the very meaning of America” (28).  Davis’s text, then, stands in contradistinction to Elkins’s because Davis embraces an ethical approach—or at least entertains moral questions—while Elkins generally eschews approaches treating slavery as a system of competing moralities (Elkins 28).  Davis appears to position his text as a corrective to, rather than an extension of, scholarship on American slavery, although he, like Elkins, refuses to view history as necessarily linear or progressive, and although he uses America—that is to say, the colonies that would make up the United States—as a starting point for investigating other European slave societies both earlier (ancient, medieval, and Renaissance) and later (the eighteenth and nineteenth centuries in the West Indies and Brazil).  Davis’s accounts are not and cannot be exhaustive, but they are critically detailed and theoretically sound, tracing lines of thought about slavery across a vast time and space.  Davis takes pains, in chapters eight and nine especially, to debunk the notion that slavery in Brazil and Latin America was less harsh than slavery in North America.  Here he falls, like Elkins, into the trap of comparing a severe phenomenon from one time and place with the severe phenomenon of another time and place in a way that distracts from the brutality and grotesqueness of both phenomena.             

Winthrop Jordan’s White over Black (University of North Carolina Press, 1968), winner of the National Book Award and the Bancroft Prize, followed shortly after Davis’s publication and explores race-based theories underpinning the international slave trade.  The fundamental question upon which this book rests is whether racism precedes slavery or slavery precedes racism.  Contra Davis (see Davis, chapter 9), Jordan submits that slavery precedes racism, particularly in the American context.  His thesis is that although historians treat slavery and racism as one-in-the-same, the beginning of slavery does not correspond with the beginning of racism, which is a later phenomenon.  The colonists and mercantilists who transported slaves from Africa to the Americas were less motivated by racial prejudice than by difference itself.  Insofar as difference is bound up with race, the distinction is a fine one.  Nevertheless, “racism” entails science and implicates discourses of biological superiority and inferiority, whereas “difference,” as it were, entails dissimilarities that are, among other things, aesthetic, religious, cultural, sexual, and social.  Jordan’s focus is on Anglo-America.  He does not investigate slave life in Brazil or in the West Indies as does Davis.  His analysis is mostly rooted in the eighteenth-century, roughly the same period that Davis uses to foreground his discussion of earlier forms of slavery.  Both Davis and Jordan privilege a white, European reading of history, at least inasmuch as they ignore the perspectives and quotidian realities of black slaves.  Jordan in particular is criticized—and rightly so—for his apparent attempts to understand the psychology of European colonials.  Although he, like everyone, has no access to the inner thoughts of colonials—or to the inner thoughts of anyone not himself—he does piece together stark insights from the outward manifestations of personal attitudes that, in the aggregate, combine to create a telling portrait of the colonial ethos and milieu.  Davis’s work anticipates the work of later scholars such as Orlando Patterson, who, in Slavery and Social Death (Harvard University Press, 1982), analyzes slavery as a widespread practice throughout different periods and places. 

Despite their shared attention to breadth and continuity, Davis’s and Elkins’s books differ in several important ways, but most notably in Davis’s avoidance of totalizing definitions for slavery.  Patterson defines slavery as “the permanent, violent domination of natally alienated and generally dishonored persons” (13).  This definition is problematic for a number of reasons, not least of which is its reliance upon slippery signifiers: “permanent,” “domination,” “natally alienated,” and “generally dishonored.”  (Was American slavery “permanent” if it no longer exists?  Put another way, did American slavery constitute slavery if it came to an end?  And did slave status always necessarily entail the natal?)  Patterson’s definition is too broad or too narrow, depending on who is interpreting it and in what context.  That there might be a universal definition for slavery, however, is an interesting—albeit daring—proposition.  It lends critical substance to Davis’s thesis that the dynamics of slavery remained relatively fixed over time, despite diverse technological, economic, and ideological currents shaping slavery in different eras.      

Slavery received an enormous amount of attention among historians working during the late twentieth century, and every year historians continue to uncover more information about slavery.  But the law professoriate has yet to examine the laws of slavery with adequate detail.  With a few notable exceptions—I’m thinking in particular of Paul Finkelman and Ariela Gross—law professors have yet to properly examine slavery and all of its ramifications for the law.  In light of Eugene Genovese’s magnificent Roll, Jordan, Roll (New York: Pantheon Books, 1974), which is now quite old but which remains relevant and important to any understanding of slave laws in America, the lack of attention to slave law among legal academics is striking and even worrisome.  Why have legal academics fallen behind in this critical area, and what are they doing to make up for this lacuna in legal scholarship?

Allen Porter Mendenhall

War, huh, What is it good for…. 1

Over at Legal Lacuna, Mai-Linh has a great write up on a conference at UVA on the role of war and narration. Let me give you this quote:

My interest, as a student of literature, lies in how we conceptualize and narrate war when the traditional elements of a war narrative no longer exist. Where is war set? What is a front line? Who is a combatant and who is a civilian?

This is, in essence, the idea behind the Cass Mastern Material in All the King’s Men. Except the battle is not physical war (at least not yet).  Its the moral war of race and status confronting themselves in the soul of a single man (Cass Mastern) and manifesting themselves later in the life of a different man (Jack Burden).  The fact is,  All the King’s Men only makes sense when read through the lens of the Cass Mastern Material because the story is about the ability of mankind to look back, define, and then redefine itself (and its history) in the context of the self. (This is why the 1949 movie All the King’s Men is pretty good (got the fact that the book is primarily about Jack Burden) and the 2006 movie All the King’s Men is just gawd awful!) (In my best Huey P. Long accent)!

Back to Cass Mastern.  It seems that Jack understands that humans, in telling stories, are painfully aware of the impact those stories have on our own perception of not only what we did, but who we are.  Jack says:  “I have said that Jack Burden could not put down the facts about Cass Mastern’s world because he did not know Cass Mastern. Jack Burden did not say definitely to himself why he did not know Cass Mastern. But I (who am what Jack Burden became) look back now, years later, and try to say why.”  And after some conjecture, Jack offers this possibility for his inabilty to write about Cass Mastern: “Or perhaps he laid aside the journal of Cass Mastern not because he could not understand, but because he was afraid to understand for what might be understood there was a reproach to him.”

Hmmm.   Perhaps we retell wartime narratives with new places, not because we are afraid of the past, but rather we are trying to validate the present…

Domestic Violence and Adultery [UPDATED] 1

Thanks to the dutiful tweeting of Mai-Linh Hong of Legal Lacuna and the blog Por Completo: the Puerto Rican Supreme Court decided that their Domestic Violence Prevention and Intervention Law does not apply to violence perpetrated while in an adulterous affair. It seems the language of the law applies only to couples who are married, living together, or have a consensual relationship, and according to the blog (as the decision is in Spanish, and I barely know English as it is): “The opinion establishing the exclusion includes this excerpt and interprets it to mean that the law ‘was limited to violence in the marital sphere or between couples or exes’…”

The blog adds that: “Which not only completely misses the point, but opens the door to a dangerous kind of moralizing in which whether a woman is seen as deserving the protection of the State depends on whether or not we think she had it coming. In laying the groundwork for excluding other kinds of relationships from consideration, it also legitimizes traditional heterosexual relationships (more specifically, marriages) and sets up a situation in which it is actually dangerous to operate outside of that construct.”

While of course I don’t condone this type of violence (nor any other), and my intuition leans toward including such incidents under this law, I don’t agree with the blogger’s rationale. As I understand domestic violence laws, their purpose is to make sure the protections of the state extend into the marital dwelling, where traditionally it was not encouraged (and a fact which was taken advantage of). Naturally, this would extend to nonmarried cohabitating couples as well, and even to committed relationships with no cohabitation (given that they spend much time at their separate residences), since much activity of such couples takes place in the privacy of a home.

Regardless of the court’s actual rationale, their decision could be interpreted as saying that extramarital affairs do not take place mostly at residences which are considered private (and sacrosanct) places, and therefore do not need the extra protections the state extends to domestic arrangements, but can rely instead on the protections against violent crime that the state provides in general. This does overlap, of course, with social mores against extramarital affairs (I do not know if Puerto Rico has adultery statutes), and such mores may have influenced the deciding judges, but my point is simply that there may be a less moralistic interpreation of the decision (one I nonetheless disagree with).

UPDATE: After a Twitter conversation with Mai-Linh which goaded my thoughts a little more, let me clarify: I merely identified a rationale for the decision based on the motivation for domestic violence laws. But since I disagree with the decision, and if one believes that additional state protection is necessary in all intimate relationships, regardless of domesticity, then the interpretation of those laws must change. This decision might have been a way to do that, had it gone the other way.

“Law and Order” at Law, Culture, and Humanities meetings Reply

One thing I forgot to mention in my introductory post was that I too attended the Law, Culture, and Humanities meetings (as did Warren), and I blogged about one of the final sessions, a roundtable discussion of the television show “Law and Order,” at my Psychology Today blog.

I also participated in a panel about virtue and law; I will try to blog about that here soon…

Greetings (and a peek at my table) Reply

Hello! Thanks to Warren and the rest of the Table for having me here–I’ll try not to disappoint!

Warren did a fantastic job introducing me, so I’ll just add a couple things…

First, I come to law through economics and philosophy, and I am fortunate to teach courses in both law-and-economics and legal philosophy. My main interests in law are punishment (retributivism in particular) and jurisprudence (especially Ronald Dworkin’s law-as-integrity). I have a new edited volume out (or nearly out) from Oxford titled Retributivism: Essays on Theory and Policy, which I will blog about here, as well as a monograph coming soon from Stanford, Kantian Ethics and Economics: Autonomy, Dignity, and Character, which plants the seeds for a Kantian-Dworkinian synthesis that I hope will be the topic of my next book. (More about that later too if you’re interested–I invoke it a bit in my chapter in the retributivism book also.)

Second, I blog several other places: Economics and Ethics (where I focus primarily on news and research in those areas, but also law and philosophy more broadly), The Comics Professor (where I talk about one of my passions, comic books, usually in terms of philosophy, as in my books like Batman and Philosophy), and Maybe It’s Just Me, But… (my blog at Psychology Today, where I go on about just about anything, including legal issues such as the insanity defense,  wrongful convictions, and most recently employment discrimination). I’m also on Twitter, where you can find updates about all of these things.

Finally, a look at my table. My latest book acquisition is David Luban’s Legal Ethics and Human Dignity, and on the “read soon” pile are:

And currently playing: Louis Armstrong, Louis in New York, preceded by The California Concerts.

Once more, thank you for having me here, and I look forward to hearing from you!