Month: February 2018

February 27, 2018 Law

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?

February 23, 2018 Law

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.

February 22, 2018 Eastern Orthodox Church

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.

February 21, 2018 Church

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.

February 1, 2018 Economics

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.