Criminal Law on a Tuesday

In a working paper available via SSRN, Bernard Harcourt, a professor of law at Columbia, presents three essays on criminal justice, including a provocative piece comparing the sentencing of Daryl Hamm to death in Alabama to the “show trial” grand jury hearings of Darren Wilson, the police officer responsible for shooting Michael Brown. Harcourt argues that these “verdicts” are illusionary; they fail to get to the truth and instead use the legal process to mask raw political decisions. Even the venerable New York Times was duped, declaring the Grand Jury decision to not deliver a bill of an indictment a “verdict” when, in fact, no trial had taken place, no witnesses were called through the adversarial process, and no neutral trier of fact was present. Yet today many Americans believe that Wilson was “acquitted” of any wrongdoing because the legal process, as orchestrated by a politically driven prosecution team, says so.

David Bentley Hart once provocatively declared that all human law is a fiction, and he’s right. Even the laws that we have, the ones we can look up on Lexis and Westlaw, are little more than an expression of particular ideological interests with only scant interest in aligning with any higher notion of justice, natural or divine. Even if one wishes to ground law in something a bit less “exalted,” such as history or tradition, consider for instance how rickety the “Anglo-American legal tradition” has become. Michigan, for example, has an ever-growing list of so-called strict liability offenses whereby no intent is required, which flies in the face of an aspect of Anglo-American criminal law that has been present since at least the days of Judge Blackstone. Scant attention is paid to this, as this reality both benefits prosecutors and only impacts the “criminal elements” of society.

Tell a layman this and should gasp. And the only reason lawyers would go unfazed is because most don’t care. As noted, prosecutors adore strict liability offenses; it makes their job easier. Defense attorneys, at a certain level, may not be a big fan of them, though the more strict liability offenses there are, the greater chance someone will be ensnared by one and need legal assistance. (Never mind, of course, that assistance comes with one hand tied behind its back.) The public at large, constantly made fearful of crime around every corner, don’t have a powerful incentive to seek reform to the criminal code to ensure that strict liability offenses are minimized, or disposed of altogether. Many states, in order to rectify this problem, have passed statutes imputing general intent on all crimes, though Michigan is not one of them. Sure, the Michigan Supreme Court has said that strict liability offenses are “generally disfavored,” but that has not stopped the legislature from passing more or the courts from enforcing them.

Returning to Harcourt, there is more going on in criminal law than just the use of procedure to mask politics broadly. There are specific political economic interests at stake. Municipalities depend on criminal sanctions to fill their coffers and meaningful reforms which would reduce dangerous behavior are rarely taken. For instance, consider criminal sanctions for driving while intoxicated. All automobiles could, in theory, be equipped with so-called blow-and-go equipment that would make a driver pass a sobriety reading before activating the car. Although some would find a way to evade these measures, the vast majority of those inclined to “risk it” and drive intoxicated would be prevented from getting on the roads. Similarly, measures restricting the late-night sale of alcohol and the operation time of bars would also substantially reduce the risk of drunk driving, and yet they are not taken. Why? Because drunk driving offenses bring in revenue, both to the local municipality, but the state, along with the legal profession as a whole. Moreover, restrictions on alcohol and alcohol sales are said to have adverse economic consequences for stores and bars; never mind that what they are peddling contributes to people making poor decisions with deadly consequences.

Could the system be otherwise? Certainly, but not likely. In other forums, Harcourt has called for greater civic engagement as a means to both exposing power structures and generating meaningful reforms in accordance with justice (albeit an ill-defined sort of justice). But those who are most likely to wind up on the wrong side of criminal law are those least likely to head to the polls, sign petitions, engage in protests, or use print and online media to make their positions known. It would be nice to hope that those in power or “those in the know” will, out of the goodness of their hearts, take steps to ameliorate the plight of under-represented persons who are routinely subject to the inequities of the criminal justice system, but hope is only meaningful when placed in its proper context, which is always theological. At the practical level, hope means very little; a willingness to act is crucial. But from whence does that willingness come? Who is answering that question?

About Last Night

Many sophisticated arguments have been made for and against the application of the death penalty, most consequentialist and some deontological. In Catholic circles, debate over the death penalty recently heated up after Pope Francis condemned the practice outright. That pronouncement, like so many pronouncements of this Pontiff, appeared to conflict with the Church’s prior teaching on the matter, which recognizes the permissibility of the death penalty while allowing that there may be prudent reasons for civil authorities to refrain from using it. In the United States, the death penalty is legal in 31 states, though four currently have a moratorium on the practice. This term, the Supreme Court of the United States will hear arguments about why the death penalty should be abolished under the Punishments Clause of the Eighth Amendment. That clause, rightly or wrongly, has come to be interpreted in line with our “evolving standards of decency,” an elastic measuring stick that I, as a tender (and naïve) youth of 27, criticized in my first foray into legal scholarship as historicist.

Last night, the state of Alabama attempted to put to death Doyle Lee Hamm for the murder of a motel clerk in 1987. Hamm, who has cancer, is at risk for his execution by lethal injection to go awry because of the damage to his veins. In short, there is a high risk that Hamm’s veins will rupture during the execution procedure, sending lethal chemicals into his flesh and leading to a protracted, torturous death.

Despite numerous petitions on his behalf, the 11th Circuit Court of Appeals determined, based on affidavits submitted by Alabama, that the execution could still proceed so long as certain procedures were in place, including using veins in Hamm’s lower extremities rather than his arms. In a last ditch effort to save Hamm from a potentially excruciating execution, his attorney, Columbia law professor Bernard Harcourt, appealed to the Supreme Court to review the 11th Circuit’s ruling. After granting a brief stay, the Court voted 6-3 to deny cert, thus paving the way for Alabama to carry out the execution. For 2 1/2 hours, Alabama officials attempted to find veins on Hamm capable of receiving the lethal injection; they could not. And so, less than half-an-hour before the death warrant was set to expire, the execution was called off.

What went on during those 2 1/2 hours remains a mystery. Only Hamm and those officials and correctional officers present know for sure. Hamm’s attorneys, family, and the media were not present, which is why an emergency motion was filed and granted today in federal district court. According to the order, Hamm is supposed to receive a full medical evaluation tomorrow with an official hearing on Monday which, inter alia, will allow those present, including Hamm, to give an official accounting of last night’s events. The district court has also ordered that no evidence from the aborted execution is to be disposed of, including Hamm’s clothing. What the examination, hearing, and physical evidence will reveal is anyone’s guess, though there is a high likelihood that Hamm was stuck repeatedly with a needle for more than two hours before the debacle was called off.

Distressingly, Hamm’s case received scant mainstream media attention until the execution was almost underway. The Washington Post started covering the matter late last night, noting that the Supreme Court had rescinded its stay and highlighting the risks involved with executing a cancer-stricken man. Aside from a handful of Catholic commentators and outlets that stand firmly against the death penalty in all circumstances, those “enlightened young Catholics” who routinely stock up their moral capital by chasing after causes they think will win them credibility among mainstream Leftists were silent. Why? Perhaps because Hamm, a man who far too many in America would deride as “poor white trash,” wasn’t “hip” enough to care about. Similarly, the most unsettling aspect of Hamm’s case, namely the years of legal malfeasance that have kept him on death row, isn’t “shocking” or “immediate” enough to generate Facebook “Likes” and re-Tweets. Or maybe, just maybe, the routine injustices attendant to America’s penal culture is an acceptable byproduct of a larger system of policing and surveillance meant to secure the essential promise of liberalism, the essential promise that so many “illiberal Catholics” refuse to let go of, namely an unserious life of entertainment, etc.

David Bentley Hart on American Orthodoxy

To my surprise, David Bentley Hart’s 2017 Fordham lecture, “Orthodoxy in America and America’s Orthodoxies,” received very little attention despite being available for free on YouTube. (I confess that I didn’t take the time to sit down and watch the whole thing until last evening.) For those familiar with Hart, it contains much of what you would expect: a humorous anecdote concerning convert-itis; several references to Orthodoxy’s penchant for ethnocentrism and particularism over the universal mission of the Church; reservations concerning the dominance of neo-Palamism and the neo-Patristic synthesis; and frustration with Orthodoxy’s kneejerk anti-Latin/anti-Western mentality. Hart, a convert from high-church Anglicanism, has mixed feelings about the influx of Evangelicals into Orthodoxy, especially since they carry a peculiarly American-style religious sensibility into the Orthodox fold. (Oh, and just to rile the kids up, Hart declares Fr. Sergius Bulgakov to be the greatest systematic theologian of the 20th century.)

Hart’s relationship to the Orthodox world has always been a rocky one. His first book, The Beauty of the Infinite, received heavy praise from Catholic and Protestant theologians; the Orthodox either ignored it or, as in the case of the theologian Fr. John McGuckin, gave it a chilly reception. The word on the street in certain Orthodox circles is that Hart is not a true “Orthodox theologian” because he both leans on Western sources and opts not to tether his thinking to neo-Palamism. Perhaps this is why Hart has, either by his own hand or those of his publishers, been rebranded over the years as a religious writer, a cultural critic, a philosopher, and, most recently, a translator of the New Testament. Although certain conservative-to-reactionary Orthodox voices on the Internet continue to decry Hart, it is safe to say he now transcends his confession’s internal quarrels, at least in the United States.

In listening attentively to Hart’s lectures, I could hear echoes of Fr. Alexander Schmemann’s frustrations with Orthodoxy in America, such as its insularity, infighting, and internal divisions. Schmemann believed that for Orthodoxy to survive and thrive on this side of the Atlantic (or Pacific), it must shed its accidents and embrace in full the universal message of Christ. Today, nearly half-a-century after the controversial establishment of the Orthodox Church in America, that still hasn’t come to pass. What did come to pass after Schmemann’s all-too-early repose in 1982 was a grand flux of Evangelical Christians into the Orthodox fold. Hart notes that though the actual number of coverts to Orthodoxy remains quite small, the proportion of converts to cradles (i.e. those born into the Orthodox Church) is significant. Native Orthodox Christians wishing to hold on to their old ways, safe from the influence of outsiders, have lost the fight.

Hart, a frequent critic of American religiosity and the culture it helps uphold, is not entirely thrilled with this development even as he carries the hope that the kind of Orthodoxy rising up in the United States can shed itself of both Evangelical-inspired fundamentalism and the Old-World mentality that sees Orthodoxy as little more than a cultural expression, perhaps even an extension of the nation-state. Hart has no time for those converts who wish to cloak themselves in foreign garb by appropriating another culture in the hopes of being “authentically” Orthodox. American Orthodox must be Orthodox Americans, with their own peculiarities, but neither unmoored from the fruits of the Christian East (Divine Liturgy, Church Fathers, Eastern spirituality, etc.) nor beholden to any form of chauvinism.

Some of what Hart expresses reminds me of what a kind Orthodox priest (himself a convert from Catholicism) once told me, namely that God could not save him as a Russian for he wasn’t a Russian; God could only save him as an Irishman (or, rather, an American with deep Irish roots). Fascination with Orthodoxy’s ethnic tapestry is praiseworthy so long as it does not degenerate into idolization. To say that lesson has not been learned yet would be an understatement. For a certain segment of American Orthodoxy’s convert population, Vladimir Putin’s illusionary “Holy Russia” redux has become the Orthodox Mothership patrolling the globe ensuring purity of belief in Russia’s divine mission against the horrors of liberalism. That problem, that pathology, warrants separate and specified treatment, however.

Never Post About Fasting, But…

A recent post appearing over at Taylor Marshall’s web-log compares Islamic fasting practices during Ramadan with those that existed in the Western (Latin) Church during the Middle Ages. Setting aside Taylor’s cringe-worthy commentary on “hot Christian princesses” and the “toughness” of medieval Christians, the post illustrates just how far the Latin Church has drifted from its aesthetical roots. Still, it’s worth bearing in mind that when Western Christendom followed an austere Lenten discipline, life was, well, rather terrible. Food consumption occurred at a radically lower rate than what we experience today and foodstuffs such as meat and dairy were not widely available to most of the population. Moreover, as Taylor’s post highlights, the relaxation of the Latin Church’s fasting discipline came first at the behest of monastics (many of whom lived better lives than laymen) and the rich who exchanged gifts to the Church for dispensations from fasting.

Today, only the Eastern Christian churches (most of which are out of communion with the Catholic Church) mandate regular fasting with a special emphasis on Lent. Before saying anything in its favor, it is important to note that the “fast heavy” culture in the East, particularly among the Orthodox, is often exaggerated and romanticized. A good number of so-called “cradle Orthodox” (i.e. those born into Orthodoxy) take their communion’s fasting rules in stride, and while some will follow them strictly, many do not. This often scandalizes converts to Orthodoxy who sometimes turn fasting into an idol, as well as a point of pride that makes them stand out from other Christians. Too often this degenerates into the unedifying spectacle of converts and cradles arguing over disciplinary minutiae with particularly sensitive souls fretting over whether “the Fathers” would have condoned the consumption of peanut butter during Lent.

The Latin Church, with its penchant for disciplinary legalism, today provides a fairly easy path for its faithful to adhere to the rules strictly under pain of mortal sin. The Orthodox, by contrast, have a far more rigorous conception of fasting, albeit without the attendant penalties—maybe. An Orthodox cleric of note once told his parish that there was no need to confess falling short of Orthodoxy’s fasting prescriptions period. (The exception to this counsel would be breaking Orthodoxy’s Eucharistic fast and still receiving communion.) Another I have come across told me that any deviation from mandated fasting is a sin that should be confessed, though there may be mitigating circumstances such as being a guest in a non-Orthodox home and being served meat or accidentally ingesting a forbidden product because one forgot to thoroughly read the ingredients on the back of the box. All Orthodox appear to agree that any pastor can dispense a member of his flock from all or part of the fast on a case-by-case basis.

In an effort to “upgrade” the prevalent of fasting, at least during Lent, many traditional Latin Catholic outlets and publications will call attention to the Catholic Church’s fasting disciplines as they existed in the first half of the 20th century. Many traditional Catholics, for instance, honor the Ember Days despite their abolishment decades ago. Still, this is a minority of Catholics overall and even these disciplinary rules fall far short of what was expected in the Latin Church a millennium ago.

It is easy, and perilous, to problematize fasting. Instead of becoming an act of self-discipline that assists a soul in drawing closer to God, it turns into a legal debate. One has to wonder if the Latin Church, again with its penchant for legalism, could even redirect Christians toward greater austerity without mentioning fire and brimstone. In other words, without a culture of exhortation with a hefty dose of tolerance toward limitations and weakness, inspiring (rather than threatening) people to do better for their own spiritual benefit will prove difficult. Proposed canonical rules with an “or else” attached will be resisted and likely never come into effect anyways.

A Remark on Productive Loans

Everybody knows usury is a sin just as they realize that the post-Reformation order and the rise of economic liberalism conspired to make usury a part of everyday life in the West. Why charging illicit interest on money is sinful is nicely summarized by Fr. Walter Farrell in the third volume of his Companion to the Summa:

Wherever usury is found it is wrong; and its evil is manifest. It is absurdly simple to understand that to charge a man twice for the same thing is always unjust; yet that is precisely what usury does, it sells the same thing twice. The trick is possible only when the thing sold or loaned is consumed in its very first use, things like wine or sandwiches, or money. When we demand, over and above the return of the original sum of money loaned, an added amount for the use of the money, our act is the same as selling a man a glass of wine and then charging him for the privilege of drinking it. If we keep this simple statement of usury in mind, it will not be difficult to understand the absolutely necessary distinction between usury and legitimate interest. The latter is charged not for the mere use of the money as in usury, but on some extrinsic title.

Notice here that Fr. Farrell makes a distinction between usury and legitimate interest, that is, interest that is charge “not for the mere use of money…but on some extrinsic title.” Perhaps the two easiest examples of extrinsic title that come to mind include high-risk loans and loans affected by inflation. With respect to high-risk loans, the Byzantine Empire generally allowed for the charging of interest, particularly for loans regarding the transport of goods by sea (a risky enterprise back in the day). The charging of interest to cover inflation also makes sense and, for the most part, is uncontroversial. Short-term loans for modest sums that are paid back relatively quickly pose no apparent risk and so, historically, have not been granted an exemption to the general rule prohibiting the charging of interest.

What about so-called “productive loans,” which Hilaire Belloc and others have discussed? Productive loans are those that can assist a person in his work, such loaning someone $10,000 in startup money to open an oil-change shop or a bakery. The idea that Belloc advances is that it is legitimate to charge interest (or, rather, receive a payout of dividends) should the business turn a profit. However, should the business not turn a profit or even fail, then the person making the loan would have no additional claim beyond the original sum loaned. A more radical iteration of this approach is that should the business fail, then there is no right to a return on the money loaned. In other words, the investor shares in the risk of the business failing, but also has a right to proportional proceeds over and above the amount loaned should the business succeed.

Here is how Belloc describes productive loans in his work, The Crisis of Civilization.

A man comes to me and says: “I have found upon my property a vein of ore, but it lies deep, so that I shall require a considerable capital—say $100,000—to extract the valuable metal. That metal, when it shall have been extracted, will be worth at least $200,000. But I cannot obtain this advantage until I purchase the instruments for developing the mine and have hired the labor required to work it. Lend me the $100,000 necessary for the operation.” I answer him: “If I do so, you must give me a share in the profit, say half of the total.” He agrees, that without my capital he could not develop the mine; without his ore my capital would not be used. The combination of the two is productive wealth, and we share that wealth. That is a perfectly moral transaction, even if the profit be one of 100 percent or 1000 percent over the original investment; so that if, with my stipulated half profit, I make 50 percent or 500 percent on my original loan, I am in no way to blame. The increment is not properly speaking interest on a loan of money: it is a share of real wealth.

I make mention of this distinction here because it is a common objection of economic liberals that Catholic social teaching and the systems that have been devised to conform with it would not be productive without usurious lending. In their minds, “the market” demands usurious lending as the only mechanism by which businesses can start and grow; innovations will occur; and the material needs of society shall be met. At the same time there are rightly concerned souls who fear that any lending many run afoul of the Church’s classic and immutable stance against usury. That is not necessarily the case. Loan agreements and, indeed, the general laws of a society can be crafted in such a way as to control the types of interest being charged and the circumstances under which it may be permissible.

The Economist on Deneen on Liberalism

This week’s edition of The Economist contains a review of Patrick Deneen’s Why Liberalism Failed, a work that hasn’t quite (temporarily) captured the public’s imagination in the way Rod Dreher’s Benedict Option did last year. (Perhaps too many people are reading Jordan Peterson.) The Economist, which has never shied away from its roots as a defender of classical liberalism, is surprisingly kind to Deneen’s book, even going so far as to acknowledge liberalism’s failures in recent years. Where The Economist takes umbrage with Deneen is with respect to his decision to lump many different iterations of liberalism under one roof. According to the anonymous reviewer, Deneen’s “lumping” leads him to conclude that liberalism “lies in freeing individuals from constraints.” On the contrary, “liberalism contains a wide range of intellectual traditions which provide different answers to the question of how to trade off the relative claims of rights and responsibilities, individual expression and social ties.”

The Economist then goes further. By “lumping” many different types of liberalism together, Deneen fails to acknowledge liberalism’s capacity for self-reform. Here the reviewer rattles off a short list of liberal crises, most of them economic, which were redressed by targeted legislation and political reform. However, The Economist does not take notice of how these reforms to “correct” or “temper” liberalism have given rise to a century-long quarrel among liberals over the defensibility of these reforms. Take, for instance, early 20th century progressive legislation which, among other things, targeted trusts that placed restraints on trade; unsavory labor conditions, including child labor; and urban degradation brought on by industrialization. Today, many of these reforms and the more radical reforms they inspired are challenged by libertarians as not only illicit encroachments by the state on free enterprise, but economically unsound. Moreover, social reform legislation, such as the civil-rights laws of the 1960s, have been used to push more radical agendas that leave many deeply worried that the triumph of liberalism is the triumph of ideology over religious and moral truth.

It is hard to imagine liberalism reforming itself at this late stage to meet the concerns of its more virulent critics, a population that is likely to expand in the coming years as wealth disparities continue to increase, social and communal ties break further down, and liberal ideology further displaces any and all competing interpretations of reality. The Economist takes it on faith more than anything else that liberalism can continue to reform itself and is silent on how any and all reforms may cause deeper rifts between various liberal camps over such touchy subjects as the role of government in the economy, the place of public regulation to enforce private values, and international relations.

At some point the harder point will need to be made by liberalism’s critics that the problem with liberalism is not merely its internal incoherencies, but the fact that it is plain wrong. However, to do so means taking a step most critics of liberalism are unwilling to make, and that is a step in favor of the truth of revealed religion over the novelties of Enlightenment thinking. That is far easier said than done. Look, for instance, at that great historic bulwark against liberalism, the Catholic Church. For over 50 years, it has become a matter of course in Church circles that liberalism is not only here to stay, but that it represents a positive good in human history. To return to the trenchant critiques of liberalism offered by numerous popes and churchmen from the 18th century onward is seen as nothing less than a giant leap backwards into the “kingdom of darkness” which Hobbes, Locke, and Rousseau were said to have freed us from. And even if some soberminded Catholics are inclined to believe the Church has tilted too far in favor of liberalism since the Second Vatican Council, their hope remains for a gentle compromise between the Church and liberalism rather than what those with eyes to see know is coming, namely an irrevocable confrontation.

Rod Dreher Doesn’t Understand Integralism

Rod Dreher has been a tear the past week writing about integralism. The only problem is that he doesn’t seem to understand what integralism is. In his latest attempt to wade into waters which he has not properly scouted, Dreher declares that integralism “is a philosophy that would subjugate the state to the power of clerics.” This is a grossly misleading way to frame the integralist thesis, especially since just days earlier Dreher quotes from Pater Edmund Waldstein’s compact but thorough explanation of that thesis:

Catholic Integralism is a tradition of thought that rejects the liberal separation of politics from concern with the end of human life, holding that political rule must order man to his final goal. Since, however, man has both a temporal and an eternal end, integralism holds that there are two powers that rule him: a temporal power and a spiritual power. And since man’s temporal end is subordinated to his eternal end the temporal power must be subordinated to the spiritual power.

Integralism, as can be seen from Waldstein’s definition, is not the clerical fascism that Dreher fears, and yet Dreher does nothing to correct his mishandling of the integralist thesis. Here is Dreher again:

I can easily imagine myself around 1998, as a younger Catholic, full of ardor and ideology, finding the clarity and logic of integralism appealing, but having spent years writing about the abuse scandal, and seeing how terribly clerics can screw things up—not because they’re clerics, but because they are human beings, and their ordination does not change that—there is no way on God’s green earth I would stand for an integralist regime. I say that mostly as someone who wants the Church to flourish. A church that has too much temporal power imperils itself in a different way from a church that it [sic] completely at the mercy of the secular state—but imperil itself it does.

No one denies that clerics “can screw things up,” but then again, so can secular politicians and the people who vote them into office. It happens all of the time. Still, this is beside the point. The real problem with Dreher’s panicky remarks is that they miss the point of integralism almost entirely. Integralism does not recommend that priests and bishops should be handed the reins of political power. Indeed, integralism keeps in clear view the distinction between the temporal and spiritual, recognizing in line with Church tradition that the spiritual only exercises indirect temporal authority while keeping the spiritual realm safe from temporal encroachment. This is not true in what appears to be Dreher’s preferred political model, Byzantine-style symphonia. Although symphonia contemplates a distinction between the temporal and the spiritual, the practical result in history is that the weaving of the two results in the spiritual becoming the handmaid of the temporal. Much of the history of the Byzantine Empire and, later, the Russian Empire attests to this lamentable problem.

Dreher’s scattered remarks implying that integralism would, among other things, give cover to clerics who sexually abuse children are beyond grotesque. Nowhere does Dreher point out how integralism provides cover to anyone—clerical, religious, or lay—who violates divine, natural, or rightly ordered civil law. Dreher’s casual juxtaposition of the sex-abuse crisis with his misguided remarks on integralism read as little more than a childish attempt to besmirch integralists in the mind of his audience. If anything, integralists, almost all of whom are conservative-to-traditional Catholics who routinely uphold classical moral teaching, would press for a legal and penal system that deals far more harshly with sex crimes than what we find under liberalism. Moreover, as staunch defenders of the priesthood’s dignity and the proper formation of seminarians, integralists are likely to champion strict screening procedures for candidates to the priesthood.

It is sad that Dreher, a man who frequently claims that he is misunderstood and read uncharitably by his critics, is content to treat integralism so thoughtlessly. As an Eastern Orthodox Christian, it is understandable that Dreher might have some reservations concerning integralism, especially since his chosen confession—as I have argued before—lacks a genuine integralist tradition. However, having reservations is no excuse for calumny. Dreher admits that The Josias is a solid repository of integralist thought. Perhaps he should take some more time to read it and read it carefully. Until then, it would behoove Dreher, as a Christian, to cease making irresponsible claims about integralism while misleading his readers into thinking that an integralist state would necessarily be rife with abuse, scandal, and the covering up of unspeakable crimes. No integralist state will be perfect and no integralist is promising paradise on earth. Rather, the integralist state can help order man toward his final goal, which is Heaven.

One Irreligious Man

Uriel da Costa (born Gabriel) was a rather pious man, at least for a time. Born into a family of cristãos novos in 1585 who thought it better to convert than be thrown out of Portugal with the other Jews, he lived in the tension between his ancestral Judaism and his family’s new-found (but not altogether sincere) Catholicism. Costa tried to make a good run of it. After studying canon law in his teenage years, he came to hold an ecclesiastical office and later, when penning his brief autobiography, made a point to present his father in particularly as a devout Catholic. His father’s early death, coupled with other misfortunes, prompted the Costa family to flee Portugal for the Netherlands and Germany, respectively. Having already come to doubt the tenets of the Christian religion in favor of Judiasm based on his own independent study of Scripture in Portugal, Costa was in for an existential crisis when he finally came face-to-face with Rabbinic Judaism abroad. While Costa thought of himself as a faithful adherent to the Law of Moses, he saw little in Continental Judaism except for emptyheaded legalism and ritualism.

Now in his early 30s, Costa set out to disrupt the flawed but stable orthodoxy of his day through a series of publications which, inter alia, challenged the structure of Rabbinic Judaism; denied the immortality of the soul; and posited that that the Judaism of his day was devoid of the spiritual riches contained in Scripture. Prior to his critiques reaching their crescendo with the 1623 work An Examination of the Tradition of the Pharisees, Costa was excommunicated by the rabbis of Vienna—a mark that would follow him to his eventual settlement in Amsterdam. While Costa appears to have been able to maintain a decent standard of living through his business dealings during this period, his life became one of painful solitude. By 1633, he sought to reconcile himself with the local Jewish community, though it failed to take. Here is Michael Della Rocca’s account of the closing years of Costa’s life from his book, Spinoza.

Da Costa’s ban was harsher than most. When he was banned in 1633, the possibility of atonement was left open, but it was atonement by flagellation that was required. Da Costa refused, but by 1640, after enduring years of isolation, he agreed to go through with the punishment during which he was not only whipped in the synagogue, but, after the display, was forced to lie down at the threshold of the synagogue. Those who exited then stepped on his body on their way out. Unable to bear this humiliation, da Costa shot himself several days later.

Many years after his suicide, Costa’s autobiographical statement, Exemplar Humanae Vitae, made it to print. Later criticized by scholars for its inaccuracies and incompleteness, the document still stands as Costa’s last word on his beliefs—beliefs that had degenerated from a hopeful embrace of Biblical Judaism to religious skepticism. By the time he had reached the end, Costa could confidently declare that religion was little more than a human invention and that God (or, rather, his own conception of god) cared little for man-made rites and ceremonies. Even the Law of Moses, which Costa had once held up against the rules of the rabbis, lost its divine character. Lonely and humiliated, Costa left this world without the comfort of the religious outlook he once suffered to defend.

For those few who bother to pay Costa a bit of mind today, he is typically seen as the forerunner to Baruch Spinoza and an early progenitor of Biblical criticism. Some Jewish scholars, uncomfortable with the nature of Costa’s treatment during his lifetime, have attempted to rehabilitate him as a Jew whose conditions removed his culpability for heresy. Costa, after all, was born into an environment of coerced conversions where any sign of “Judaizing” could result in the loss of property, freedom, or life at the hands of the Inquisition. Having never been brought up in an authentic Jewish milieu (i.e. a Rabbinic Jewish milieu), Costa cannot be blamed for his errant understanding of Judaism generally and Holy Scripture particularly. Moreover, infused with non-Jewish ideas at an early age, Costa’s outlook—so the apologetic story goes—was forever marred; no matter how hard he might have struggled to reconcile himself with the faith of his fathers, it was never to be. As such, Costa must be held harmless for his heterodoxy while his life and legacy should be interpreted as a tragedy rather than a blemish on Jewish history.

That is, so-to-speak, a nice way of putting matters, though one wonders what Costa would think of this revisionist narrative. It’s hard not to imagine that Costa would see the biggest error of his life not in his rejection of Rabbinic Judaism, but in his attempt to reintegrate into the Jewish community of his time. Further, it is hard to shake the feeling the true tragedy of Costa’s life was not the confusion imposed upon him by his environment but rather his mental-spiritual instability, an instability that led him to expect far more from the religious culture of his times than it possibly had to offer. Of course, perhaps Costa wasn’t that unstable, mentally or spiritually. Maybe, like some now living, Costa believed that the lofty spiritual, philosophical, and theological teachings of the Bible warranted earthly representation which, though always inadequate to the task, could be far, far better than what’s available. Costa, tortured by this dashed hope, ultimately succumbed; most tortured similarly today walk away from the pain under the guise of becoming illumined.

Two Religious Men

On September 16, 1666, in the ancient city of Adrianople, Sabbatai Sevi, the reported Messiah of the Jewish people, converted to Islam. Although the event did not bring to a close the movement known as Sabbateanism, it did mark the decline of the last great messianic movement within Judaism. Scorned by Muslims and Christians alike, the Jewish populations of Europe and the Middle East, arguably, never quite recovered from the blow their “Mystical Messiah” dealt them. Meanwhile, over in the land of Russia, an archpriest named Avvakum was causing a bit of a stir himself. Steadfastly opposed to the liturgical reforms introduced by Patriarch Nikon of Moscow, Avvakum turned altering the Sign of the Cross and Slavonic orthography into an apocalyptic event. As the best known of those Russian Christians who would come to be known as “Old Believers,” Avvakum is credited with creating the first masterpiece of Russian literature: his frenzied, paranoid, and heterodox story of his life. Avvakum, unlike Sevi, had no pretense to being a messiah; he did, however, see himself as God’s agent in the world, the last of the saints who would hold fast to the spiritual, liturgical, and linguistic patrimony of the Russian Church in the face of torture and death. Having had enough of his antics, the Russian state burned Avvakum and three of his followers at the stake in 1682.

With the publication of Gershom Scholem’s monumental work on Sevi in the mid-20th century, a small but noticeable scholarly enterprise has been built up around this seminal figure in Jewish history. Scholem’s study, which eschewed a materialist explanation for Sevi’s popularity among the Jews of his day, has been met with equally compelling accounts that see, for instance, the origins of Sabbateanism in the plight of Eastern European Jewry in the 17th century. Others see in Sevi an opportunity for the Jews to abandon beliefs and practices which had made them stand apart for centuries. As a messianic figure, one of Sevi’s perceived tasks was to abolish the ritual law of the Jews before inaugurating a bloodless restoration of the Kingdom of Israel. Perhaps, some opine, Sevi’s appeal came about due to a general Jewish exhaustion of adhering to religious tenets that seemed to bring them nothing but misery for over 1,000 years. Whatever the reasons behind the growth and popularity of the Sabbatean movement, the final world has yet to be written about this delusional figure and the impact his life had on Jewish history.

And what about Avvakum? In the Anglophone world, Avvakum is typically only known by way of passing mention in Orthodox history books or the English-language translation of his autobiography. He is not, in the estimation of most Orthodox Christians, a figure to be revered. Yet there is an argument to be made that he is a figure who lurks behind any and all liturgical pedantry among the Orthodox, particularly the Russians. Avvakum’s great error, as many have pointed out, was to identify the Christian Faith with liturgical praxis. Avvakum, like almost all of his Russian contemporaries, did not realize that the Byzantine Rite, no less than any other approved rituals within the Universal Church, did not spring into being by way of a few strokes of a saint’s pen. The Byzantine Rite, as it was kept in Russia in the 17th century, was the byproduct of numerous revisions, redactions, and recensions—sprinkle on some scribal errors, obscure local practices, and a general ignorance of Church history and theology and what you have is a recipe for religious disaster. The Old Believer movement, though always a minority movement within the Orthodox Church, nevertheless caused a serious rupture within Russian Orthodoxy and arguably contributed to the eventual secularization of the Russian Orthodox Church by Tsar Peter the Great at the turn of the 18th century.

Today, the Jewish people are still waiting for a messiah while Russian Orthodox zealotry typically takes the form of militaristic nationalism rather than spiritually inspired apocalypticism. Might an argument be made that this tempering of what one might call the “religious spirit” is a sign that despite protestations to the contrary, secularism—with its inordinately positive appraisal of a certain type of rationalism—has, on some level, “won”? (Won what? I do not know.) The Jews, on the one hand, appear to have lost hope, or at least otherworldly hope, while the Christians of Russia, on the other, see their “mission” to the world materially rather than spiritually. Maybe this is for the best. After all, few good things, humanly speaking, befall those who get carried away by enthusiasms not easily measured empirically, and the sum total of the psychic and moral damaged caused by misplaced enthusiasms is likely incalculable. Still, their absence is decidedly felt, especially in a world where the surest cure for boredom is an iPhone.

Uplifting Year-End Thoughts – Part 3

Accompanied by Q, that immaculate collection of our Lord’s sayings that so many “Biblical Christians” routinely ignore, a man could find his way through this life with nary a worry. For this uncontroversial text, attested to by a great cloud of witnesses for nearly 2,000 years, forms the cornerstone of Christianity. In fact, it is such a powerful collection that it is said at pulpits across the world that it, along with the Gospel of St. Mark, shaped the formation of Ss. Matthew and Luke’s gospels. No doubt this is why children are taught from the earliest age to appreciate the sweet science that is textual criticism, for without it the careless scribal errors of ages past may very well shape the souls of those living today. The horror.

Facetiousness aside (well, not entirely), nobody today contends that Catholics and Orthodox alike are woefully ignorant of the Bible. While some schoolchildren are fortunate enough to be handed cute songs and rhymes to assist them in remembering the titles of the Biblical texts, a vast majority of them will never read a single verse of Scripture outside of what may be contained in either their hand Missals or quoted in a “spiritually uplifting” book. When I come across a Protestant at one of West Michigan’s numerous Christian-themed coffee shops, I have to confess off the bat that they have bells n’ smells Christianity beat when it comes to the Bible just before reminding them that the existence of the Bible presupposes the Church which canonized it. Most folks, particularly young folks, aren’t terribly impressed by that, and for good reason. For if I or any other Catholic/Orthodox take such pride in the production of the Bible, why don’t we make a firmer effort to read it? Woe to us, I suppose.

One common justification for not reading the Bible that circulates among Catholics and Orthodox is that it is up to the Church to determine what Holy Writ means; reading it “alone” will only lead us to commit the Protestant of error of imposing our own subjective meaning on the text. Maybe. Again, given how many Protestants I have met who are sure of what Scripture means and yet offer up wildly disparate readings of the same pericopes does affirm, at a certain level, the reality that Scripture can be manipulated along a number of mutually exclusive lines. A Protestant rebuttal to this line of thinking is that if it is for the Church and the Church alone to interpret the Bible, why bother reading it at all? Why not simply look to what the Church has to say and leave the text of Scripture to the side? While this line of questioning is often intended to instill shame, more often than not it seems to bolster Catholics and Orthodox in holding that “ignorance [of the Bible] is bliss.”

What, I wonder, would become of Christianity were the Bible to be read and read often. Would there be less sin? Would there be a greater thrust to remake the world and evangelize those lost to heathenry? Might streaming television and video games go the way of the dodo as people spent their well-earned hours of leisure in heated but charitable discussions over the meaning of Job or why God would allow his most obstinate prophet, Jonah, to become His most successful one? Perhaps the only magazines and books to be produced would be Biblical commentaries, each one invested not so much in scoring polemical points or advancing careers, but rather disclosing the meaning of the single most important book (or, rather, collection of books) in human history? Maybe, under the guidance of the Word of God, a real effort would be made across the nations to restore all things in Christ. Or perhaps people would just find more reasons to despise, vilify, and ultimately murder one another—just like in the good old days.