In Part II of “Walking with Horatio Alger,” I follow the path taken by Horatio Alger’s Ragged Dick on the first day of the novel. I’m accompanied by friend, former student, and lawyer Matt Milford, and we reflect on the story and its meaning while try to recapture its original sense of place. We also eat a delicious Vietnamese bánh mì sandwich.
For Part I of my Horatio Alger video series, see here.
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September 13, 2014: This post has been moved to March 31, 2014 for organizational purposes.
Horatio Alger doesn’t have much to do with law or legal history—except for the extraordinary fact that he was Justice Benjamin Cardozo’s private tutor for a spell. But I hope you’ll enjoy this video all the same. It’s about a wonderful old book I found a couple of weeks ago after a long hike.
The video is the first, draft installment in a series which, among other things, is giving me great practice in video editing in Adobe Premiere Pro—which, in turn, will allow me to create a long-planned series of videos that will tell the story of the development of the common law through the linked story of ten rare books.
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September 13, 2014: This post has been moved to March 30, 2014 for organizational purposes.
In the latest issue of Telos, I review two books by Paul Kahn of Yale Law School, Political Theology: Four New Chapters on the Concept of Sovereignty and Finding Ourselves at the Movies: Philosophy for a New Generation. In both books, Kahn reads contemporary American law and politics through a framework influenced by the writings of Carl Schmitt. The theme of the issue is “After Faith” (for readers not based in a university, I’m afraid the issue is behind a pay wall).
In the review, I write that Kahn’s books “crisply document and provide a provocative theoretical account of an important feature of America’s distinctiveness: its social imaginary of ‘the political,’ particularly the conceptual, cultural, and affective place the social imaginary affords to law. In Kahn’s view, law in America is different. Most notably, law is imaginatively inextricable from the willingness of American citizens to engage in sacrificial acts of political violence. The reason for this potent union, he explains, is theological. The American nation-state—born of revolution and deriving its legitimacy from a trans-generational popular sovereign (‘we, the people’)—provides a source of ultimate meaning for its citizens analogous to religious belief. In Kahn’s analysis, that is, both the American experience of judicial review and the nation’s openness to the use of existential violence stem from a common source: the fact that ‘our political practices remain embedded in forms of belief and practice that touch upon the sacred.'”
Written last October, my review, titled “Love’s Empire,” begins with a reference to Vladimir Putin’s critique of the notion of American exceptionalism in his New York Times editorial of September 11, 2013. It concludes this way:
“Kahn’s compelling description of the American social imaginary thus would seem to raise more insistently Schmitt’s question about the capacity of societies governed by liberal normativity to survive. This question seems especially significant in the context of contemporary pessimism about trans-Atlanticism. For the past seventy years, the security of those European nations that most embody the de-politicized bourgeois liberalism that Schmitt deplored was underwritten, ironically, by a nation that Kahn convincingly describes as living entirely within the exception. Whether an increasingly centralized European Union or some future system of international law can provide similar security and stability while preserving essential domains of human freedom—including by resisting elite managerialism at home and the blandishments of authoritarians from abroad—remains an open question.”
Today I had the chance to read a fascinating essay titled “The Political Failure of Islamic Law,” by Bernard Haykel, a professor at Princeton (who admits from the start that his title is “deliberately provocative and somewhat misleading”). The essay is based on a lecture he gave at Yale Law School, and it’s the most recent edition in the law school’s Occasional Papers series.
Haykel argues that the modern Sunni Reform movement and its Islamist followers have “failed to achieve the political vision of a powerful and confident Islamic order” because of their statist vision.
The Reformer’s program, writes Haykel, “represents a double rupture from the past: first, the Reformers deliberately chose to sweep away the teachings of the established schools of law; second, they opted for the state rather than society as the means by which to impose their program.”
Notably, among the consequences of the writings of Reformist scholar Muhammad Rashid Rida (1865-1935) were a rejection of “the epistemology of traditional legal rulings, most of which had been built by a process of analogical reasoning”—much, one might say, like the rules of the English common law—and the replacement of premodern legal principles with “concepts of public welfare (maslaha) and the ‘purposes of law’ (maqasid al-sharia‘a).”
“Very few are the voices of opposition to this state-centered vision,” concludes Haykel. “One of them is the Lebanese intellectual and scholar Ridwan al-Sayyid. Al-Sayyid … argues that for centuries Islamic beliefs and practices were determined by the community (jama‘a) and not by the state. The meaning of Islam was explicated by the societies in which the jurists lived and developed their views. And because it was a societal and collective enterprise, it was open to a multiplicity of views and to a degree of tolerance for difference. For al-Sayyid, the great danger today lies in giving the state, with narrow-minded Islamists at its helm, the exclusive right to determine the content and contours of Islamic law.”
Do Haykel’s arguments point to another untapped connection between the Islamic and Anglo-American legal and political traditions?
There’s a symposium this month about The Rule of the Clan on Cato Unbound, the online journal of the Cato Institute. My contribution is now online. In coming days there will responses by Arnold Kling, on March 12; Daniel McCarthy, on March 14; and John Fabian Witt, on March 17. I hope readers will join in the conversation, which promises to be lively and controversial.
In other news, I’ll be speaking tomorrow at Yale Law School beginning at six o’clock, and the paperback of The Rule of the Clan is now available from the good folks at Picador.
“What can the jazz process tell us about life?” That’s the overriding theme of Trading Fours on Blog Talk Radio, hosted by Drs. Jackie Modeste and Wesley J. Watkins, IV.
I had a lively conversation about The Rule of the Clan on the show today, and in keeping with the spirit of Trading Fours—and trading fours—our discussion ranged widely. You can hear the full one-hour show through this media player (or by clicking on the link in the first paragraph):
In the course of our conversation, the three of us had a lively exchange about jazz and democracy I thought worth sharing. Among other things, it seemed like an American version of the discussion I had with Prof. Stefan Kirste about the relation between law and musical aesthetics:
Here’s an excerpt from the conversation, which in the audio file begins at about 33:00:
Me: What liberal government has to sell has to be better than what’s on offer from other social theories.
Jackie: Right.
Me: And if liberal government is working, if it’s corrupt along any lines, certainly those of nepotism, if it’s ineffective, then liberal government deserves to lose. But I don’t think it should. And that’s why I think it’s important to defend central government, to defend modern liberal ideals of robust government capable of vindicating the public interest and thereby liberating individual energy.
Jackie: OK, yes. Yes! So what I’m thinking about is when we—
Me: Jackie, sorry to interrupt you. Something that Wes said … maybe we could play with this a little bit. I’m trying to draw connections to the jazz concerns that you have here on the show. Maybe government is like a band leader. And so if you’re thinking about Duke Ellington, right, and the kind of music that he was able to enable, if you don’t have a good band leader, then someone is going to steal that show and the swing is going to be undermined. I’m not sure if … is that the case in jazz?
Jackie: Wes, do you want to talk about that? Read the rest of this entry »
Worlds of Law 