25 November 2014

Theocracy in the Hebrew Bible

I highly recommend that you go here to download Geoffrey P. Miller's short (16 pages) article, The Kingdom of God in Samuel. Miller is a professor of law at New York University.

Miller's abstract is straightforward:
This paper argues that the idea of the kingdom of God in the Hebrew Bible refers to theocracy – the political system in which authority is exercised by God’s representative on earth. The relevant texts, most importantly parts of the Book of Samuel, explore the advantages and disadvantages of theocratic rule and compare that form of government with other models. Bible’s treatment of this topic is subtle and nuanced, recognizing virtues in theocratic rule but concluding, overall, that it does not deliver sustainable and effective governance in the real world.
The abstract does not, however, adequately demonstrate the quality of Miller's analysis. He begins by describing the benefits of narrative as opposed to the standard accounts of political theory:
Narrative is an effective analytical tool – so effective that it is widely used today, and is even a dominant approach in ostensibly scientific fields such as economic theory. Using narrative, the analyst can frame issues for discussion by specifying elements of the setting – when, where, and how events take place – and also the cast of characters – the figures to whom action is attributed within the narrative. The plot – the events that transpire in the narrative – is then a form of experiment: the analyst explores how events play out and, based on these results, can make normative assessments about the strengths or weaknesses of different arrangements.
He goes on to analyze the political account of threocracy in the Garden of Eden but then observes that 
The Bible does not, however, draw the conclusion that theocratic rule is best for actual human societies. Adam and Eve are expelled from God’s presence and can never return. God will no longer rule over them directly. Practical governance in the real world, if it is to exist at all, must be administered by flesh-and-blood human beings. The question posed is whether theocracy, an excellent form of government in a society directly ruled by God, is also the most desirable system in a society ruled by human beings?
I will skip over Miller's analysis of the theocratic approach to political ordering in the accounts of Moses, Aaron, and Gideon. With the advent of Samuel, Israel experiences a brief, legitimate theocratic interlude that ultimately ends in failure for institutional reasons: theocratic rule through an individual does not provide a foundation for administration of the powers of civil government beyond the narrow reach and short (from a national point of view) life of the theocratic ruler. Miller concludes by observing that the account of theocracy in the Hebrew scriptures for the actual world is negative:
In the real world, where rule is exercised by flesh-and-blood human beings, theocratic government is subject to shortcomings. Its institutions do not deliver the benefits of government over the long term. It is subject to abuse because theocratic leadership is intrinsically autocratic. The person chosen as the theocratic ruler may not receive genuine revelations from God and may not rule according to God’s wishes. Theocratic rule all too easily degenerates into apostasy. And theocratic rule performs badly as a guarantor of national security. Overall it is not optimal as a model for governing a substantial nation.
The lack of knowledge of institutional and administrative matters among theologians is vast. From the Right or the Left, most don't know more about civil administration than your average talk-show host. Simple-minded conclusions drawn from a few scriptural texts fall short as a source of valid prescriptions for governing the modern nation state.

(For more along this line see my multi-part review of "Law and the Bible" ending here.)

24 November 2014

Another Factor Causing Municipal Bankruptcy

With confirmation of the plans of adjustment of the two largest cities to have filed Chapter 9 bankruptcy, Stockton and Detroit, municipal bankruptcy may be about to drop from the news. It's not too late, however, to consider the reasons why these cities resorted to bankruptcy relief and thus predict what cities may follow.

Go here to read Swimming Upstream: Struggle Firms in Corrupt Cities in which the authors demonstrate a correlation between municipal corruption and higher borrowing costs in the private sector. In other words,
A corrupt local environment amplifies the effects of financial distress. Following regional spikes in financial misconduct, credit becomes both more expensive and harder to obtain for nearby borrowers -- even those not implicated themselves. This is particularly harmful for cash-constrained firms, which cut investment more sharply and lay off more workers during industry downturns. Moreover, we find that local waves of financial misconduct are a risk factor for bankruptcy.
Ecclesiastes 5:8 comes to mind.

94 Years Ago Today

Go here for a reprise of my post from November a year ago.

C. 1957 at Ranch House on King of Prussia Road

20 November 2014

Human Rights and Religion

Only a few days ago I posted come comments, here, about John Witte's analysis of civil and ecclesiastical responses to issues of sex and marriage in Reformation Geneva. Witte's latest piece, Religious Sources and Dimensions of Human Rights (download here) moves from the granular and historical to the general and contemporary.

Witte begins by covering familiar ground when he surveys the Classical, Medieval and Reformation Christian, and Enlightenment contributions to the contemporary notion of human rights. He them segues into the contemporary human rights scene with a brief recounting of developments since the United National Declaration of Human Rights in 1948.

What is not familiar to most human rights activists is the historical grounding (or at least development) of the concept of human rights in the Christian tradition. Those who want to know more than you'll find in Witte's piece can read my article, Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition (download here).

What was not familiar to me were the increasing protections of "religion" in more recent and less well-known human rights documents. Witte begins with the 1981 Declaration on Religion and Belief and progresses through the U.N. Convention on the Rights of the Child, the 1989 Vienna Concluding Document, the 1992 Minorities Declaration, and the 2007 U.N. Declaration on the Rights of Indigenous Peoples. Who outside the limited circle of human-rights insiders knew there was so much about religion? And who inside this circle is happy there's so much about religion?

The extensive consideration of "religion" in the context of human rights begs a question that Witte addresses: Is protection of religion, apart from liberty generally, warranted? In other words, are Western, elite secularists correct that religion is no more than a private caprice that should be tolerated but not overly-protected?

It is with respect to this question that Witte's contribution in Religious Sources and Dimensions of Human Rights is most significant. He describes five reasons why "religion" is unique among human endeavors and thus deserving of unique consideration as a human right. First, as I argued in Looking for Bedrock, Witte asserts that "human rights norms and cultures need religious ideas, institutions, and right claims to survive and thrive. Without religion, many rights are cut from their roots." And cut flowers, no matter how pretty, don't live long.

Second, as I also argued, "without religion, the regime of human rights becomes infinitely
expandable." Indeed, the human rights regime already has expanded its reach and made demands beyond anything that can meaningfully be understood as a right.

Third, I'll let Witte speak for himself:
Without religion, human rights become too captive to Western libertarian ideals. Many religious traditions—whether of Buddhist, Confucian, Hindu, Islamic, Orthodox, or Traditional stock—cannot conceive of, nor accept, a system of rights that excludes, deprecates, or privatizes religion. Religion is for these traditions inextricably integrated into every facet of life. Religious rights are, for them, an inherent part of rights of speech, press, assembly, and other individual rights as well as ethnic, cultural, linguistic, and similar associational rights. No system of rights that ignores or deprecates this cardinal place of religion can be respected or adopted.
Fourth, "without religion, the state is given an exaggerated role to play as the guarantor of human rights." In other words, by reducing rights to those of individuals over against the state, human rights activists strangely fall into a libertarian understanding of politics, something against which I have inveighed more than once.

"Finally, without religion, human rights norms have no enduring narratives to ground them." Witte might have said that without (a true) religion, the whole scheme of human rights is a sky hook floating in mid-air but that would have been impolitic. In any event, Witte's piece is a fine introduction to the tradition of human rights, an even better survey of the place of religion in the contemporary human rights system, and a fine defense of the singular place of religion in that system.

19 November 2014

The Democratization of America

Go here to download an excellent article by Gerald Leonard, Jefferson's Constitutions. Abbreviating Leonard's abstract:

Between 1787 and 1840, the Constitution gained a far more democratic meaning than it had had at the Founding, and Thomas Jefferson was a key figure in the process of democratization. But, while more democratic in inclination than many of the Framers, he fell far short of the radically democratic constitutionalism of his most important acolytes, Martin Van Buren and Andrew Jackson. Jefferson was actually much less attached to democracy and more to law as the heart of the republican Constitution. Compared to the 1830s founders of the nation’s democratic Constitution, Jefferson retained much of the elitist, law-oriented, anti-party, slavery-protective (though not pro-slavery) convictions of most of the Framers. In practice, his constitutional politics as Republican leader in the 1790s and president in the 1800s built an important bridge to the democratic Constitution of his successors, even if he never fully embraced that development. The ascendancy of the Jacksonian Democratic party would entrench essentially Jeffersonian constitutional principles of states’ rights and slavery protection but would substitute democratic will for reason and law at the foundation of the Constitution.
I believe Leonard's thesis is amply supported by excellent contemporary historical research. See, for example, Gordon S. Wood's Empire of Liberty: A History of the Early American Republic, 1789-1815 (an earlier post here), Charles Sellers's The Market Revolution: Jacksonian America, 1815-1846, and Susan Dunn's little-known monograph, Dominion of Memories: Jefferson, Madison and the Decline of Virginia (previous post here).

In other words, even accounting for Jefferson, the "Founders" were most certainly anti-democratic but it was Jefferson's inconsistent elitism that paved the way the early nineteenth century "revolution from below." And it's that revolution--the democratic one--whose success bathes all current political thought in the antinomies of democratic constitutionalism.

18 November 2014

Someone Else's Thoughts About Kids

I've posted several times on the long-term risks posed by declining birthrates. You can read some of them here, here, and here. Slightly more than two years ago Jordan Ballor posted a short, trenchant observation titled The Hopes and Fears of All the Years here. A teaser:
Arthur Brooks, the president of the American Enterprise Institute, put it this way in a lecture earlier this year: “As you get past a certain level of prosperity, it will become not cost-effective to have children. If you don’t have beliefs that transcend your life you won’t have [children] anymore.” Brooks describes instead a society in “which people dedicate themselves to a higher purpose, most notably to God,” and in which therefore “people will live on into the next generation. The future of a prosperous society depends on a lot of things, but the fundamental currency of the success of any society is people, is humans. When you stop having the humans, your life is limited and your prosperity is doomed.”
Ballor adds several valuable insights of his own. I recommend it.

17 November 2014

"For the Healing of the Nations"

Product DetailsThe initial publishing foray of The Davenant Trust is a great one. The collection of papers presented at the Convivium 2014 is subtitled Essays on Creation, Redemption, and Neo-Calvinism. To give you a flavor of the papers, you can read a pre-Convivium post here and my concluding thoughts here and here.

The published versions of the conference papers are uniformly excellent. Each demonstrates a deep scholarly familiarity with its subject matter and an even deeper concern to address topics relevant to a wide sweep of neo-Calvinist thought in America. While every reader will not be equally interested in each essay, collectively the essays are important to anyone who takes seriously the effects of thinkers such as Dutchmen Abraham Kuyper and Herman Bavinck as well as Americans who followed in their tradition including Cornelius Van Til and Rousas Rushdoony.

Other papers are not so inside-neo-Calvinist baseball. Topics range from Patristic use of pagan sources to English reformer Richard Hooker to John Calvin's nuanced understanding of the eschatological restoration of all things. Finally, the volume contains two essays by James Bratt, the Convivium's featured speaker, which together provide an excellent introduction to and summary of his magisterial biography Abraham Kuyper: Modern Calvinist, Christian Democrat (about which I last blogged here).

"For the Healing of the Nations" is well-edited and its print layout is clear. In other words, it is easy on the eyes. I highly recommend it and look forward with anticipation to what comes from next year's Convivium.

Comparative Security

I have taught in and directed Regent Law School's Summer Program in International Human Rights on several occasions. In fact, I expect to be in Strasbourg directing the program in the summer of 2015. You can go here to read about the program. And go here  for how to register. (Feel free to share the links with any law students you might know.)

In any event, I usually teach a class in comparative contract law. I haven't taught comparative secured transactions law because virtually no European countries have a unified law of personal property security. The United Kingdom has a un-unified system of personal property security but countries on the Continent make it difficult to grant a security interest in personal property.

It was thus with excitement that I downloaded Tibor Tajiti's new article, Could Continental Europe Adopt a Uniform Commercial Code Article 9-Type Secured Transactions System? The Effects of the Differing Legal Platforms (you can download yours here). Tajiti, professor of law at the Central European University in Budapest, Hungary, compares Australia's new unitary system of personal property security to its progenitor, the American Uniform Commercial Code Article 9 and then to various proposals for a unitary  system in Europe.

With regret I must report that matters don't look good. As Tajiti puts it:
The prohibitive complexity generated by Continental Europe’s colourful legal systems suggests that things will only change for pressing economic reasons. At the moment nothing foreshadows such a scenario; rather, the overall climate is unfavourable to the cause. Casting a favourable word on the Unitary Model in Europe today is an almost certain recipe for being perceived as a harbinger of United States legal hegemony.
Almost humorous to think that rationalizing law is perceived as a "harbinger of United States legal hegemony." But quite sad that improving economic activity through rationalization of the law is apparently irrelevant to European law makers. And quite ironic that the center of legal rationalization--Germany--can't seem to take this step.

13 November 2014

John Witte: Sex, Marriage, and Family in Calvin's Geneva

John Witte has done well for all who take seriously the historical accuracy of our knowledge of the law in action in Reformation Geneva. Witte's book chapter, Church, State, and Family in John Calvin's Geneva: Domestic Disputes and Sex Crimes in Geneva's Consistory and Council can be downloaded here.

Witte does an excellent job of explaining the sometimes-complicated relationships between Geneva's newly-created Consistory, made up of the pastors of each of Geneva's churches as well as a dozen lay representatives ("elders") elected annually by the church-member citizens of the city, and the three levels of civil government--the Small Council, the Council of Two Hundred, and the General Council. As he goes on to explain, the relationship between the Consistory and the everyday city government provided through the Small Council was particularly important because their jurisdictions overlapped. In other words, ecclesiastical and civil governments were separate, as were their sanctions, but their concerns were substantially the same: the prohibition of vice and the inculcation of virtue.

Virtue in Geneva, as Witte explicates, was explicitly biblical and included reconciliation. In other words, while the Consistory could exclude persons from communion or refer the unrepentant to the civil arm of the Council, it more often used persuasion and pastoral advice to bring contending parties or "sinners" back to the fold. I found the many examples and depth of Witte's explanations of the the Consistory's work to be especially interesting.

Church, State, and Family in Calvin's Geneva is also a great resource by which to check the ambitions of those who believe that the application of "biblical law" is a straightforward matter of transposing text of Torah to contemporary society, even if the society in question was far more homogeneous and monolithic than any in today's world. It should particularly check arm-chair theologians who don't know the law. If even one of the greatest theologians in the Reformed tradition struggled to apply the reformulated laws of a small city to real-life messes, how much more should those who think they can apply biblical "principles" to modern life take care. A lengthy excerpt should give the flavor of Witte's perceptive analysis:
It was one thing for Calvin, the theologian, to insist that marriages should be publicly celebrated with parental consent. It was quite another to decide whether a secretly married couple with a brand new child should be separated and their child thereby illegitimated and reduced to a public ward. It was one thing to thunder loudly from the pulpit that adulterers of all sorts should be stoned in accordance with the Bible. It was quite another to decide whether an engaged couple caught in heavy foreplay in their own bedroom on the eve of their wedding should be executed. It was one thing to declare anathema on interreligious marriages. It was quite another thing to deal with the hundreds of desperate new emigrants who poured into Geneva with spouses of various confessions on their arms. It was one thing for Calvin to say that married couples must live together at all costs, save in cases of adultery or desertion. It was quite another to insist on such reconciliation when a battered wife, already bent and lame from her husband’s repeated savageries, stood before him with newly blackened eyes.
In other words, then as now, wisdom should accompany the application of the law. But it's at this point that I have a small nit to pick with Witte's work: it pays insufficient attention to Calvin's explicit use of the classical notion of equity as a means of tempering unthinking application of a black-letter rule to a complex situation. Far more than any other work, Witte's shows how Calvin used equity to achieve restoration in light of law, but he doesn't back up to the the theory by which Calvin did so. Perhaps Witte simply chose not to address the topic; after all, it is his book. Yet some reference to the Roman-law concept of aequitas would have been helpful.

Interested readers can find an in depth-consideration of Calvin's use of equity in Gene Haas's The Concept of Equity in Calvin's Ethics. Haas's book is not easy to find so for a short introduction you can download my article, God's Bridle: John Calvin's Application of Natural Law here.

11 November 2014

Free At Last: Detroit's Bankruptcy Plan Confirmed

As most have heard, bankruptcy judge Steven Rhodes confirmed Detroit's Chapter 9 plan of adjustment. You can read a nice account here. That the plan was confirmed should not surprise my readers. I predicted as much here although I was off in the timing by a week.The New York Times Dealbook has an excellent article about the financial pipe dream of the plan here. In short, one of principal reasons for Detroit's flight to bankruptcy--its underfunded pensions--remains:
But the pension system that the settlement leaves behind has some of the same problems that plunged the city into crisis in the first place — fundamental problems that could also trip up other local governments in the coming years. Like many other public systems, it relies on a funding formula that lags behind the true cost of the pensions, and it is predicated on a forecasted investment return that the judge, Steven W. Rhodes, himself sharply questioned.
I've harped on the issue of the underfunded pension of state and local (and federal, for that matter) governments for years. With some contribution by its retirees, from the state of Michigan, and some big hitters, Detroit's plan has kicked the can of insolvency down the road by a decade or two, but it didn't solve the problem. Of course, no one's going to come knocking the judge's door in 2035 and ask him about it, much less any of the politicos who pushed the case through. Which, come to think of it, is the quintessential American way.

(For some more scholarly analysis, read my article Municipal Bankruptcy: When Doing Less Is Doing Best (download here).

10 November 2014


What do you get when a largely-forgotten actor who formerly played a superhero played by a not-forgotten-but-no-longer-top-draw actor who formerly played a superhero? Who's haunted (or is it a recurring hallucination?) by the the deep voice of his superhero past? Who sets out to write, direct, and star in a Broadway adaptation of a short story by mid-twentieth century American writer Raymond Carver about what we say about love, when he's never loved?

You get Birdman or (The Unexpected Virtue of Ignorance). Starring Michael Keaton as Riggan Thomson, the washed up and broke former star of the Bird(not Bat)man superhero series of films, Birdman is a very dark comedy sending up the pretensions of millionaire Hollywood stars, affected Broadway actors, and pretentious New York Times theater critics. I have no idea if any of these folks are as dysfunctional as represented but even if only half as vicious as portrayed, it's a sick world out there.

The film's crudity and vulgarity, although appropriate for its vision of the worlds of screen and stage, are off-putting. It's culminating vision--suicide after reconciliation--is hardly comedic in the classical sense. Yet the screenplay, acting, directing, and editing are superb. Extraordinarily well crafted in the service of a vision of life saved from thorough-going tragedy in death, Birdman is a powerful film that most certainly is not for everyone.

07 November 2014

Viva Arbitration!

Outside the law school academy, most would not know of the existence of opposition to the growing use of arbitration. Arbitration between parties is generally believed to be quicker and cheaper than litigation. Others suggest that arbitration's real benefit, at least in the world of consumer transactions, is either to keep bad merchant practices under wraps or to steer the disputes to arbitrators who are biased in favor of the sellers of goods and services. Or both.

I have no dog in this fight. There are very good arguments on each side. But there are other reasons parties might agree to arbitrate rather than litigate.

Go here to read Arbitration's Counter-Narrative: The Religious Arbitration Paradigm (download here). About a year and a-half ago I posted with approval another of Michael Helfand's articles. You can read those posts here and here. And I'm pleased to commend this one to my readers' attention.

Cribbing from Michael's abstract:
Arbitration theory and doctrine is dominated by an overarching narrative that conceptualizes arbitration as an alternative to litigation. Litigation, on the one hand, is more procedurally rigorous, but takes longer and costs more; arbitration, on the other hand, is faster and cheaper, but provides fewer procedural safeguards. But notwithstanding these differences, both arbitration and litigation ultimately serve the same purpose: resolving disputes. 
This Article, however, contends that this exclusive focus on arbitration’s standard narrative has left unexplored a competing arbitral narrative — a counter-narrative of sorts — that examines the contexts in which arbitration differs from adjudication because it aims to promote an alternative set of values beyond simply resolving disputes.
This Article considers a paradigmatic example of arbitration’s counter-narrative: religious arbitration. When parties agree to religious forms of arbitration, they select religious authorities to resolve disputes in accordance with religious law. And, as a result, these forms of arbitration are embraced not solely as a utilitarian mechanism to resolve a dispute, but because they enable parties to resolve a dispute in accordance with shared religious principles and values.
In other words, arbitration can serve important non-pecuniary goals such as either the application of religiously-identified rules of law or arbiters who share the religious faith of the parties. Or both.

The Christian organization, Peacemakers Ministries, does precisely what Helfand describes. So too would Catholic courts of canon law and a Jewish bet din. Helfand's article thus serves to inform a wider audience of the non-utilitarian virtues of arbitration.