I Should Be Studying

This has become the common refrain of my life. Whenever I'm not showering, shaving, eating or sleeping... I should be studying. I'm not, obviously. Sometimes, I'm driving somewhere or buying a Coke out of a vending machine or picking up my dry cleaning (just saying that makes me feel old!) or saying hello to the other people on this earth I used to have relationships with. But most of the time, yeah, I'm studying.

I have friends (well, they would be friends if I weren't constantly ignoring them in favor of huge tomes of litigious matter) who tell me I need to have a balance. "Relax," they say. "You need to get out. If you are too focussed on schoolwork, you're going to burn out and run into a brick wall." They obviously don't appreciate my chaotic perfectionist nature. Logical and caring they may be, but when have I ever let either of those virtues stand in my way?

I look at my classes instead. I look at my notes, the quality of my class participation, my postings in online discussions (or lack thereof), I listen to members of my study group talk about the issues. And I feel that I am already not grasping some of the most crucial issues we are supposed to be learning.

So, I dedicate more of my day to studying. I get to the library when it opens in the morning and I study until I can't sit in a chair any more. And do you know what the funny thing is? I can't say I feel particularly more intelligent or discliplined this semester. I'm putting in more hours, but a lot of those hours seem to go by without much progress. I can't even say I feel I more confident about my upcoming exams. All I know is I can't take the risk of having a life. Howz that for logic?

Just Something to Think About

"We have not a government strong enough to restrain the unbridled passion of men. This Constitution was made only for a moral and a religious people. It is wholly inadequate for any other.”
-- John Adams
Oct. 11, 1898

Law and Morality

(A response to a discussion on law and morality)

You seem to suggest morality is divorced from rationality, that one cannot rationally explain one's morals or discuss morality in a rational way. But the truth is that most contemporary moral philosophers find that rationality plays a central role in the creation of morality. (See Jeffrie Murphy, Moral Reasons and the Limitation of Liberty. 40 Wm and Mary L. Rev. 947, at 955) . I agree that discussions of morality can be “emotionally charged” and our beliefs are often deeply “ingrained,” but that doesn’t necessarily divorce them from rationality. In fact, “[P]hilosophers generally see the place of reason in ethics to be an issue of central importance.” (id. at 955).

You also state that morality is a morass of relativism. Quite the opposite. When all the empirical data has been observed and all the questions have been answered, morality is in fact the only thing we as a people can go to that won’t change. Scientists and statisticians will be the first to tell you that everything in the universe is in a constant state of flux, including what we understand about the very foundations of the laws of science. Copernican systems were replaced by Newtonian systems were replaced by Einsteinian systems which today are being questioned. Do they have their place? Most certainly. Can they tell us if the sun will most likely rise tomorrow? Yes. But can they tell us what is “right” and what is “wrong”? That isn’t even their purpose. Even the most hardcore scientist will tell you that.

Which leads us to your suggestion of utilitarianism. Well, you actually seem to make my point for me, though you may not yet realize it. It makes me think that we may actually agree on some of the issues we are debating (though please correct me if I’m wrong). Utilitarianism cannot make normative judgments without another system deciding first what is right and wrong, i.e. a moral system. By saying, “People should be able to choose their own morals to the extent that it does not harm others,” you are making a moral statement.

“Why then does the law protect citizens against, among others, injury, harm, offense and indecency? Surely it is because for someone to inflict these one another without adequate justification and excuse is to act wrongly, i.e. immorally. Indeed, if one begins to examine some of the more specific categories, the most prominent of which is ‘harm,’ one reaches the conclusion that the term itself is a normative one.” (Gerald Dworkin. “Devlin was Right: Law and the Enforcement of Morality, 40 Wm and Mary L. Rev. 927 (1999).)

At some point, one has to take a stand above and beyond empiricism and say simply "this is wrong." One can use utilitarianism or empiricism to work through the data and have brilliant conversation, but there has to come a point where you cannot explain why you believe something without resorting to moral reasoning (or circular logic). There has to be a foundation of moral normative judgment for empirical data to stand on. Otherwise, it is arbitrary information with no value to it.

The foundation of our laws and our society must be a cannon of commonly held beliefs and sense of morality if we are to have any sense of stability or any sense of what is truly right and wrong. Utilitarianism may be a "means" just as you pointed out, but it has to be a "means" to some appointed goal. The goals of Happiness, of Social Harmony and Lack of Harm are all rife with moral undertones. Their very definitions beg the question that there exists a moral system to describe them.

Now does every law have to deal strictly with morality? Does every moralism have to be codified in our law? Do we have to pull out the Bible or the Koran or the Torah every time someone comes before our tribunals? I hope that I don’t even need to answer this question. If this is the caricature that you have painted in your mind of my position, than either I have poorly explained it or you have poorly understood it.

My position is simply this: We must have an underlying foundation of common morality if our society is going to survive. Basic moral beliefs of freedom, justice, liberty, tolerance, self-determination and priority to the family must stand at the center of our existence (This list is not exhaustive by any means but represents a small cross-section)

From these common beliefs, we build our laws and system of government, referring back to our common beliefs when new situations arise that seemingly question who we are. As far as we are capable, we allow our consciences dictate to us what is right and wrong and only involve law when the infraction is so heinous as to threaten the structure of our society.

My original posting last week posited that criminal law is the last battleground on which we want to fight questions of morality. I still believe that. Because our society is SO strong and SO free, most of our debates on morality, utility, and other belief structures don’t have to be immediately translated into legal terms. I think you would agree that they shouldn’t be. If we are living our lives in a moral fashion, we can come to conclusions as a society much sooner than we can through our laws. If our society is adequately built on common core moral beliefs, then the multiplicity of opinions that remain should have the adequate breathing space in which to thrive and find purchase.

But if that small core of common beliefs are constantly disrupted and called into question, then we have no starting point from which to grow. The entire stability of our way of life is constantly threatened. It’s like pulling up the plant every 20 minutes to clip a bit at the roots. It’s just not going to work.

Let one walk alone

"... let a man walk alone, let him commit no sin, with few wishes, like an elephant in the forest.

"The Elephant"
The Dhammapada
A Collection of Verses
Being One of the Canonical Books of the Buddhists

Crime and Punishment

I just finished reading this article in the New York Times and I'm disgusted. This man is a murderer, a killer, a cop-killer. His community is trying to make him out to be some victim or martyr and blame a military and a war he willingly was a part of. "A casualty of war?" Hardly. His father wants him buried with military honors. He should be thrown in a pauper's grave with no tombstone. The article wants to throw the blame of this man's actions at someone else's feet. Yet, we cannot escape the responsibility of our own actions. This man opened fire on police officers that he lured to a gunfight and then cold-bloodedly executed one of them.

This article is a perfect example of how our society is losing its foundations. This man is a killer and we want to blame everyone but him.

Our Myopic View

One of the longest running and most bloody civil wars of the 20th and 21st Century came to an end peacefully earlier this week in the Sudan, orchestrated in part by Colin Powell. Though the Darfur region is still a mess, the resolution promises to bring either autonomy or self-representation to the oppressed south. It was on page 6 or 7 of the Washington Post.

The European Union's supernational legislature just signed a Constitution making it one of the largest governments in the world. Though it still has to be ratified by its member nations (states?), this represents a huge step towards the creation of what some are calling "The United States of Europe." I caught a blip of this on NPR yesterday morning.

What are we so preoccupied with here in America that we don't make these front-page stories?

A shot from one of our gigs this fall. Just thought it would look good here. That's me in the middle. We will be playing again, soon, at a location near you. 

What I hope this is teaching me

So what is this law school education all about?

We're arguing. That's what we're doing. We're arguing about all these subjects. Attorneys and scholars and the rest of the world are arguing about a million different subjects. The education is getting me up to speed on the current arguments for or against so many different subjects. It's giving me the tools to make a living and to support a position. Ideally, that's what it's all about. Maybe I'm fooling myself. Maybe it's all just about the money...

Lord Coleridge Regina v. Dudley and Stephens
14 Q.B.D. 273 (1884)

"We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime."