05 December 2016

What's Wrong With Rights? Part 3

For Parts 1 and 2 go here and here.

A right-order account of justice works from the top down by asking two questions: What should this society, if rightly ordered, look like? And what should be done when a member of this society departs from that order?


As justice-as-rights approach starts from the bottom and in turn asks its two questions: What are the rights of each human person, and what should be done when someone violates one of those rights?


Which is the correct way of conceptualizing the project of doing justice? And even if one wants to take a bit from each account, which one has priority over (or which is foundational to) the other? It seems that the latter question is the one that divides our two protagonists, Nicholas Wolterstorff and Oliver O'Donovan.


Rights-crazed societies, like those in the contemporary West, are confronted with a never-ending and unsustainable series of claims on the public purse and even other persons. As I argued in Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition (download here), pulling more and more rights out of political thin air will eventually capsize the entire rights project. In short, without an ontologically thick account of what it means to be human, there is no foundation for human rights. (In the context of this post it is worth noting that it was Nicholas Wolterstorff's Justice Rights and Wrongs from which I derived some my arguments for this very conclusion in yet another article, Principled Pluralism and Contract Remedies, download here.)


Not only is the current bricolage of human rights incoherent and unsustainable, it has done great damage to some human beings. Untethered subjective rights are regularly weaponized to destroy social institutions like marriage and family that have been been part of every rightly ordered society (e.g., no-fault divorce). Many of the costs thereby created are imposed on unwilling spouses, children, and society at large. In other words, gains (in the form of being free from the fetters of unwanted relationships) are individual but the costs in the form of reduced standards of living (usually for women and children) and increased anti-social behavior are externalized. So much for subjective rights.


On the other hand, right-order accounts such as O'Donovan's and Scruton's, are free-riders on the Western tradition. In other words, the "right order" whose demise at the sword of subjective rights they decry is a very particular form of right order, one that is not interchangeable with other "right" orders. Think, for example, of India's residual caste system and North Korea's Confucianism on steroids; both are societies would fall under the rubric of "right-order" yet neither is one that O'Donovan or Scruton would argue should be impervious to the corrosive effects of subjective rights. At least I hope not.

What is the solution to the problem of justice if neither right order nor subjective rights are free from deforming effects? Of little surprise to those who know my work I believe the answer is in a principled combination of the two accounts of justice. The simplest unifying structure could be Aristotelian: subjective rights are the efficient cause and right-order is the formal cause of justice. The final cause of justice transcends both of its parts and informs each of them but justice cannot be understood apart from its constituent elements.


Alternatively, and one with which I continue to wrestle, is to apply my multi-perspectival approach to justice. (For examples of my multi-perspectival approach to individual legal topics see The Law of Contracts: A Place to Start (download here), Consideration in the Common Law of Contracts: A Biblical-Theological Critique (download here), and Mission Possible: A Paradigm for Analysis of Contractual Impossibility (download here). On my typical three-fold platform of normative, situational, and existential, the latter two perspectives would encompass right-order and subjective rights. For now the third perspective on justice eludes me but I hope to work it out soon.

01 December 2016

What's Wrong With Rights? Part 2

Go here to read Part 1 about the disagreement between rights-based and right-order approaches to justice.

In Justice: Rights and Wrongs, Nicholas Wolterstorff argues that people have inherent rights and that justice is about rectifying wrongs done with respect to those rights. On the other hand, Oliver O'Donovan believes that societies should order themselves aright and that justice is about re-balancing disorders in a society. I believe that both approaches are true. After all, why can't people have rights and live in a rightly ordered society?

I'm not sure why Wolterstorff believes in a plurality of subjective rights to the exclusion of right order* but I think I can account for O'Donovan's recalcitrance to credit a place for subjective rights. Some slightly modified quotes from his The Language of Rights and Conceptual History help make my point:
There is a political problem with the language of rights, which is its apparent serviceability to the subversion of working orders of law and justice.
Does the evolution of a plural-rights concept indicate a civilizational mutation in the practical outworking of which we are still caught up, which has as its end the overthrowing of our traditional conceptions and practices of justice-as-right? 
Our  contemporary quarrels over rights language are no more than a rerun of the vigorous conceptual battles between human rights and social justice that sprang from that attempt two hundred years ago [which is] the use of rights language in the revolutionary era to gain a critical advantage over existing systems of justice.
In short, O'Donovan is a Conservative in the mould of Roger Scruton. How so? Consider how Scruton compares civil society to the family in The Meaning of Conservatism:
The family, then, is a small social unit which shares with civil society the singular quality of being non-contractual, of arising (both for the children and for the parents) not out of choice but out of natural necessity. And (to turn the analogy round) it is obvious that the bond which ties the citizen to society is likewise not a voluntary but a kind of natural bond.
In other words, just as a properly functioning family does not subsist in continual vindication of the subjective rights of each member but is instead rightly ordered in a natural way, so too, for Scruton, is civil society.  And, although O'Donovan doesn't cite Scruton in The Language of Rights and Conceptual History, his view of civil society generally, including its political expression, are substantially the same. Justice as rights is simply inconsistent with the nature of social reality whether in the family or writ large in the state. Wrongs may occur within a family or state, of course, but they are, in many cases anyway, corrected by reorienting the offending family member rather than by asserting claims against the offender. And, to the extent injured parties assert claims in a right-order polity, justice recognizes those claims only to the extent that right order requires.

For O'Donovan, orienting a society around subjective rights is no more appropriate than doing so in a family. The goal of justice in the state is comparable to that of stability in the family: the restoration of orderly relationships. Therein, I believe, lies the appeal of justice as right-order. We all hope for orderly relations consistent with the nature of the relationship involved. Coupled with this sense of nostalgia is the recognition that justice-as-rights (whether in its Liberal or Progressive versions) has played a part in destroying the very relationships for which we long.


Next--and last--my thoughts on how to reconcile the two approaches to justice.

*One might think that Wolterstorff grants priority to the right over the good because he's a a Rawlsian. Except he's not. See my article Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition (download here).

30 November 2016

Another Perspective on Student Loans

This time, from the taxpayers' side of the problem. I've posted many times about the problem for students of nondischargeable student loans (here, here, and here, for example). Merely because student loans are nondischargeable in bankruptcy, however, does not mean they'll be paid.

Rather than changing federal bankruptcy law, Congress and an aggressive Obama administration have multiplied the ways in which those burdened with student loan debt can "work it off" for less than the full amount due. "Income Driven Plans" (IDR's) are increasingly common. According to today's Wall Street Journal (here),
Enrollment in the plans has more than tripled in the past three years to 5.3 million borrowers as of June, or 24% of all former students who borrowed directly from the government and are now required to be making payments. They collectively owe $355 billion.
What's the fiscal effect of IDR's? According to the GAO, $108 billion of that student loan debt will be forgiven "in the coming years." That's a fair amount of money, even by federal government standards, and makes a difference to taxpayers. Either we cover it with tax collections or it gets rolled into the ever-increasing federal debt. The latter seems much more likely.

Is student loan debt forgiveness sound public policy? Doubtful, given the woeful state of much of American higher education. Even pragmatically, will Americans collectively get more than $108 billion of value from this back-door federal expenditure? That's doubtful, too, although it's much harder to say with certainty. There is a correlation between level of education and all sorts of social goods but there are too many confounding factors to conclude whether higher education causes those goods or that the sorts of folks who do well would have done so apart from federal student loans. (Feel free to look at a Cato Institute study here.)

In short, we're looking at another can that despite Republican control of the levers of federal power will be kicked down the road.

29 November 2016

What's Wrong With Rights? Part 1

Long, long ago in a place far, far away (India in 2009, to be exact) I posted relentlessly on Nicholas Wolterstorff's book Justice: Rights and Wrongs. Among other topics on which I commented was Wolterstorff's contention that subjective rights--and not an ontological right order--were fundamental to the concept (and reality) of justice.

Backing up a bit. The concept of plural subjective rights, immunities from the power of others, including civil government, finds its explicit origin in late Medieval/early modern times. It is certainly the case that the plural word "rights" did not appear in ancient the Hebrew, Greek, or Latin lexicons. The singular "right" was, of course, a commonplace. How could it not be, for example, in the world of the Hebrew people whose life was structured around Torah? And think too of their prophets, those prosecutors of the Torah covenant lawsuit, whose job it was to convict the people (and particularly their leaders) of violating (and permitting the violation of) the "right order" described in Torah?

But acknowledging that Torah described a right order for life does not exclude the notion that individual Hebrews also had rights as we understand them today. Deprivation of one's life or property wronged the victim as well a violated the right order of Hebrew covenantal society. In other words, Hebraic justice included rectification for wrongs, that is, vindication of rights.

For reasons not entirely clear to me, Wolterstorff seems unwilling to concede the ontological grounding (or even a lexical equality) of subjective rights in a right order. For my earlier elaborations on Wolterstorff's belief that rights precede right order go here and here. For my initial criticism of Wolterstorff's unwillingness to concede that there even is such a "thing" as right order go here.

If Wolterstorff seems a bit one-sided, he has good company. Just as he argues for subjective rights at the expense of an ontological right order, right-order proponents such as Oliver O'Donovan won't budge from their side.

You can go here to download The Language of Rights and Conceptual History, O'Donovan's reply to Wolterstorff. O'Donovan raises a number of objections to Wolterstorff's historical reconstruction that found plural subjective rights in ancient Israel. I found them interesting but ultimately unconvincing. He raises a more significant conceptual objection to the notion of subjective rights under Torah as follows:
The question is whether wronging persons consists in so treating them as to deny a specific right that they possess. The concept of "wronging" (the verb) is more naturally explained as flowing from the concept of "a wrong" (the noun), which is an offence against the moral order governing relations among God's creatures.
Well, no. The concept of wronging does not flow more naturally from an offense against the moral order than as a violation of the rights of the wronged person. Indeed, I think the precise opposite is true and was the case under Torah. How so? Because the wronged get damages. See Exodus 21-22.

On a purely right-order account, there would be no reason for the victim of a theft or personal injury to get compensation. If a victim had no right to life, limb, or property, restitution or damages for the victim's loss could just as well have gone to the the treasury of the priests. Moreover, on a right-order account, the victim's moral status should be taken into account; yet, there's no basis in the text of Torah for that to be done. In other words, theft from a blaspheming, non-tithe paying jerk generated the same judicial remedy as an equivalent theft from a righteous widow or orphan even though theft from the former may have promoted the right order of society. (For what it's worth, awarding damages to the victim of a breach of contract rather than, say, to the state is an Achilles's heel for contemporary contracts-as-efficiency theorists.)

Enough for now. Next time I'll address what I believe accounts for the contemporary appeal of right-order theories of justice and in Part 3 describe how belief in both an objective right order and subjective rights can be reconciled.

21 November 2016

The Hammer Falls on Loyalton. And What About Dallas?

Over a month ago I posted here about the plight of tiny Loyalton, California. Loyalton's city council decided it could no longer afford to pay into CalPERS, the entity that manages the pension plans for many of California's cities and counties. Of course, Loyalton's previous city council had approved exceptionally high pensions for its three employees (two of whom have since retired). And, for some reason, the current Loyalton city council didn't seem to understand that "firing" CalPERS entailed imposition of a massive charge--payment now of everything that CalPERS believes will be due to the city's employees whether retired or currently working.

When Loyalton canceled its contract with CalPERS and stopped paying, the state behemoth had two ways of handling the problem: place a lien on all municipal property and foreclose or cut what it pays on the pensions of the two retirees. Not surprisingly, CalPERS chose the later, cutting the current pensions by 60%. You can read the details here.

The retirees won't be happy, of course, but their recourse is against the city for their 40% shortfall, not CalPERS. Winning a lawsuit against the city should be easy enough. Collecting will be a different story.

While only a few folks need be concerned about Loyalton and its two retirees, all of us should be concerned about the underfunded pension obligations of many states, counties, cities, and other public entities. Even wealthy states like Texas are running the risk that they will go bust when the full flood of baby-boomer retirees demands their money. And what of Rust Belt states like Illinois with their aging populations?

Oh. And did you read about Dallas? Probably the worst-funded public pension with the exception of Chicago. Read all about it here. The Dallas police and firefighters plan, concocted by state legislators in 1993, is at such a precarious state that retirees are taking out their money in lump sums that are triggering substantial income tax bills.

Debt is a powerful tool but a seductive drug. Once hooked on debt, governments find it politically impossible to go straight; the pull of the quick fix is simply too strong. And don't forget that debt comes in two flavors. The ordinary sort in which a city borrows money for projects, some of which are necessary, some of which are not. The other flavor of debt, the one that has eaten Loyalton like a piece of popcorn shrimp and may soon take on the 64 oz. sirloin of Dallas are promises to retirees, promises in amounts that should never have been made and promises that cannot be kept.

For those of a more pedantic sort, check out my trifecta of Chapter 9 (municipal) bankruptcy articles: Municipal Bankruptcy: When Doing Less Is Doing Best (download here), Who Pays The Price? The Necessity of Taxpayer Representation in Chapter 9 (download here), Who Bears The Burden: The Place for Participation of Municipal Residents in Chapter 9 (download here). The first article in particular deals at length with the political, economic and demographic issues that underlay much of the current problem with public employee pensions.

17 November 2016

Trinity Western University: Round 10 (Give or Take)

Let's start with a hat-tip to the inestimable D.G. Hart here for the heads-up to the recent success of Trinity Western University in its long-running battle to open a Christian law school in Canada. As I've described here, here, and here, TWU's effort to expand the scope of legal education in Canada has met fierce resistance from the proponents of an "open" society. TWU's failing? To require its students to abide by a code of conduct that limits sexual activity to marriage, and in which "marriage" is conventionally defined as subsisting in a relationship between a man and a woman. A bit a throwback, perhaps, but hardly reason for a cause célèbre, or so one might think.

In any event, go here to read the 66-page opinion by the Court of Appeals for British Columbia. While in the end the Court of Appeals upheld the decision of the provincial lower court, which, in turn, had overturned the decision of the membership of the Law Society of British Columbia (the equivalent of an American state bar association) to reverse the approval of TWU's program by its own board (got that?), one should not draw the conclusion that a new day of religious liberty has dawned in Canada. That it took 66 pages to justify the freedom of a small university to offer a program of useful instruction demonstrates how we find most of the West to falling in line with totalitarian libertarianism.

One can thus be pleased with the outcome of this case and still have doubts about the future of a public place for expressions of orthodox Christian practice in Canada. Even in TWU's situation, the Court of Appeals for Ontario has held against the university which, unless reversed by the Supreme Court of Canada, precludes TWU law grads from practicing in Canada's largest province.

The prospects in the land south-of-the-border are not as grim but the eventual blowback from the recent presidential election will re-invigorate the federal government's attempts to use its Title IX tools to bring nonconforming U.S. colleges and universities to heel. (Assuming, of course, that President Trump's DOE and DOJ relent.) It's a long way from here to there, of course, but I think I'll celebrate TWU's victory with a beerMolson and not champagne.

14 November 2016

Imbalanced Gender: India's Supreme Court Addresses Sex-Selective Abortion, Again

Several years ago I posed here and here about the last-minute success of Advocate Bedi Tanu in blocking the forced abortion of the child of a mentally disabled rape victim. After losing before the High Court of the mother's State, Advocate Bedi succeeded in getting a stay from the Supreme Court of India less than eight hours before the procedure was to be performed.

The facts of the earlier case were unusual. Of far greater significance than preventing a single unwanted abortion is the stunning use of abortion in India as a tool of sex selection. Indeed, Regent University School of Law hosted a symposium on "Endangered Gender" a few years back. You can read my posts about it here and here,

Sex-selective abortion is simply the combination of two reasonably accessible means of technology--sonograms and abortion--to produce an evil result, that is, the systematic elimination of females from the nation of India. While the practice of honor killings outrage Westerners, the effects of such socially sanctioned murders of young women pale in significance to the rampant destruction of the millions of preborn persons of the same sex.

The demographic effects of sex-selective abortions are startling. In the State of Punjab, for example, in 2013 there were only 846 girls born for every 1000 boys. The medium- and long-term effects of such an imbalance hardly need to be described. One should not consider Punjab an outlier but rather as a trend-setter: in India as a whole there were 933 girls born per 1000 boys in 2011.

In response, the Government of India enacted the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act in 1994 that was intended to restrain and even criminalize the misuse of ultrasound machines for sex determination tests. As the statistics in the preceding paragraph demonstrate, however, the PCPNDT Act has failed.

To bring pressure on the governments of India's States to enforce the PCPNDT, noted public interest advocate Colin Gonsalves brought an action in the Supreme Court of India, which issued its decision a few days ago. You can read Robin Ratnakar David's summary here. This is not the first time the Court has weighed in on the effective non-enforcement of the PCPNDT so it remains to be seen whether the directives issued in this case will have any meaningful effect.

When all is said and done (or undone, as the case may be) one is left wondering about the legitimacy of prohibiting sex-selective abortion. Pragmatically, of course, maintaining a balance of female:male births is wise for any national polity. After all, young males without the socializing effects of marriage and family are a notoriously problematic group. Yet, if abortion is legal for "no reason," why should abortion for one particular reason be prohibited? In other words, if abortion is justified as an instance of personal autonomy, as an example of a human right, why should there be any limit other than collision with another's right? Why should mere social policy, no matter how prudent, limit the exercise of a fundamental right?

Oh well, no one ever said that political life, especially political life in a democracy, is led by reason. One can simply be grateful for the Court's decision and pray that it will work to preserve the lives of the youngest of India's women.

10 November 2016

Congratulations, President Booker



(For my single pre-election post go here. I expect this will be sole post-election comment because, after all, politics in American are third in importance to entertainment and entertainment's step-child, sports. Or, as put here by Carl Trueman, politics in America are entertainment and if there's something I'm not, it's entertaining.)


Looking forward from the aftermath of the recent presidential election, I want to consider very briefly the factors that made it anomalous and then extrapolate to 2020. First: Republicans should draw no long-term hope from Donald Trump's election. Consider two sides of the same coin: Trump eked out narrow victories in states like Pennsylvania, Michigan, and Wisconsin, states that Barack Obama carried with ease in both 2008 and 2012, and that Hillary Clinton massively under-performed her predecessor.


In other words, the extent of Trump's success in those and other states reflect less a movement toward him or Republicanism than a rejection of Clinton and the Establishment generally. In four years, however, Trump will be "the Establishment" and he won't be running against the lamentable Mrs. Clinton. And, in four years, many of Trump's vociferous supporters will be no better off than they are now. How could they be when the forces causing the disintegration of American society--consumer capitalism run amuck and hyper-individualized sexual autonomy--will continue to grind the fabric of society into dust notwithstanding the election of Trump (as well-articulated in this review of Robert Putnam's latest book, Our Kids: The American Dream in Crisis).

Some have pointed to Trump's slight gains in percentages of Hispanic and African-American voters vis-a-vis John McCain and Mitt Romney (check the Pew Report here) as reasons to hope for a long term inroad in these growing demographics. Not so fast. While Trump's percentage of Hispanics and African-Americans was comparable to the two preceding Republicans, his total votes from each of those categories actually declined. In other words, large numbers of folks from these demographic groups simply did not vote. Republicans encouraged by Trump's minority percentages might also want to look into those of George W. Bush, which were even better.

Which brings me to Corey Booker. Booker is everything Hillary Clinton was not: young, energetic, and, of course, African-American. Booker is Progressive-credible, something that the the beneficiary of the self-serving Clinton Foundation could hardly claim with a straight face. (A point nailed by Lawrence Lessig here.) Booker is likable, something that ... And by 2020 Booker will have served in the U.S. Senate for seven years, only slightly longer than had Barack Obama when he was elected president.

I am not the first to suggest that Corey Booker is in a good position to run for president in 2020 but in my opinion he is the most likely to succeed among the names that have been bruited.

09 November 2016

"All the Light We Cannot See"

All the Light We Cannot See (Doerr novel).jpg

Anthony Doerr's 2014 award-winning novel was our Raleigh book club's October selection. I usually post about our books shortly after reading them (here, here, and here) but I wanted to take some time to compose my thoughts about this superb novel. Yet as time passes with little to show I decided I'd better post something before forgetting even more.

"All the Light We Cannot See" is one of the finest contemporary novels I've read. I'm not the only one to think it is very good. It won the Pulitzer Prize for fiction in 2015 and was a New York Times bestseller for 118 weeks.

Doerr combines exquisite descriptions of multiple settings, detailed characterizations, and a complex plot. Principally set during WW II, "All the Light" manages to find not one but two new points of view on what is a thoroughly mined period of history. We can appreciate that young Werner Pfennig would be happy to leave the orphanage and escape a life of drudgery in the coal mines of Zollverein for a chance to pursue study of the day's high-tech instrument, the radio. That he did so at a high school military academy as part of the Nazi regime was a matter of indifference, at least at first.

Far from the industrial heartland of German we meet Marie-Laure LeBlanc, the recently blinded and motherless twelve-year old daughter of the locksmith employed in the Museum of Natural History in Paris. As the German advance approaches the city, Marie-Laure and her father flee with--perhaps--one of the museum's prize artifacts, the Sea of Flames, a diamond of inestimable value. Four duplicates of the Sea of Flames have been created and none of the five escaping museum employees know whether he has the fake or the original.

I won't begin to summarize the twists and turn of the paths of Werner from Germany to Russia and back again as the Russians gradually overpower the army of the Third Reich, and of Marie-Laure from Paris to Evreux and ultimately to Saint-Malo, a small city on the Brittany coast. Of course, Werner is eventually sent to Saint-Malo where he and Marie-Laure barely survive the Allied firebombing of the city.

I'll leave the mystery of the Sea of Flames, the death of Werner, the many other well-drawn characters, and the rest of Marie-Laure's life to the reader. Doerr's magnificent writing, his wealth of detail (the book was twelve years in the writing), and balance of joy and sadness make "All the Light We Cannot See" a pleasure to read. I cannot recommend it highly enough.

07 November 2016

Spreading State Pension Woes

My repeated posts (here, here, and here for a sampling) plus one of my published articles, Municipal Bankruptcy: When Doing Less Is Doing Best, (download here) about the looming crisis in state public employee pensions may have worn out their welcome. Yet, lest you think the problem is limited to California or rust-belt cities like Detroit, go here to read a clear and comprehensible piece about the situation in Texas.

The villain in this story, like so many about public pensions, is an unrealistic discount rate. Rather than increase government or employee contributions, pension boards and legislative bodies bet on a far higher rate of return than can be justified. In plain English, they are kicking the can down the road.

Avoiding unpleasant solutions to latent problems is endemic in democracies. Why do the hard thing that will get you un-elected? Better in the service of self-interest to let the problem fester until it can no longer be ignored but someone else in is office.

Oh well. It's not my problem. After all, I won't have to count on drawing a public pension. Or will I?

03 November 2016

"You Have the Right to Remain Innocent"



Erstwhile colleague Jim Duane's book, subtitled "What Police Officers Tell Their Children about the Fifth Amendment,"  answers two very important questions but only suggests a third about which I'll speculate.

But first, the answers. Don't talk to the police. Plead the Sixth Amendment.

Second, the background. Who knew that there are more than forty federal agencies employing a total of more than 140,000 armed investigative agents? Who'd have guessed that among the gun-totin' agents are those from the Library of Congress and the Railroad Retirement Board?

Who knew that any of these federal agents as well as those of the fifty states and thousands of smaller entities of the states are free to lie about just about everything (like the crime they are investigating, what evidence they have against you, whether your statement is off the record, and what others have said (or not said)) when they question you? Well, maybe those who watched "Making a Murderer."

Who knew that police officers can testify from their reports about anything they thought you said that may be incriminating but that any exculpatory statements you may have made in the same conversation are inadmissible hearsay? That people, especially juveniles, confess to crimes as serious as murder that they haven't committed? That they couldn't have committed because the "victim" is still alive? That there are "countless bogus experts out there, all more than willing to testify in exchange for the generous compensation that is paid to them by willing prosecutors"? Which is really good to know because they can (and do) testify incompetently or corruptly and will twist even truthful information against you.

Jim's first piece of advice--don't talk to the police--thus seems well warranted.

But why plead the Sixth? Doesn't the good old Fifth Amendment work just fine? I would have thought so until I read Jim's book. It turns out that simply remaining silent can be used against you. That improperly or imprecisely or tentatively asserting your rights under the Fifth Amendment means you haven't done it at all. And, what's even worse, your improper, imprecise, or tentative assertion of the Fifth can be used against you!

Thus, "by invoking your Sixth Amendment right [to talk to your attorney before talking to the police] ... you will probably be able to keep that information from the jury." But don't hesitate or turn your statement into a seemingly more respectful question.
There is only one way to avoid this problem. When you ask for a lawyer, do not worry about sounding polite, because that will make you sound unduly tentative or equivocal. Never ask the police officers what their opinion might be. Do not even use the words I think or I might or maybe. You meed to say, with no adverbs, in only four words, "I want a lawyer." And then you need to say it again, and again, until the police finally give up and realize they are dealing with someone who knows how our legal system really works.
What about my third question, the one Jim didn't answer, at least not clearly? Why should we care about the "right to remain innocent"? I understand why I should care about me and my family but should I also care about you and yours? After all, most of the time the investigative skulduggery Jim describes in uncomfortable detail puts away someone who is actually guilty. Sure, more than a trivial number of innocent folks have been locked up, in some cases for more than two decades, but what the heck, a few eggs must be broken to make an omelette.

Jim seems to think that we should be exorcised by the facts he describes because, after all, both the innocent and the guilty have Constitutional rights. But I wonder. Do most Americans agree? I suspect that more and more do. Even the law-and-order conservatives surviving from the Nixon era are showing some concern about the overreach of the government at all levels. Yet even for them, I wonder if that concern may be focused on the group of which they find themselves a part. In other words, do folks care about the Other as much as those who look like or talk like or worship like them?

You'll have to answer that question for yourself but in the meantime read this book. You'll be glad, even if only for yourself, that you did.

28 October 2016

Protestant Resourcement: Pillar IV

The fourth of the pillars of the work of The Davenant Trust is "Essentials." You can watch an interview about this pillar with Davenant president Brad Littlejohn here. (You can also read about Pillars I (Reason), II (Tradition), and III (Engagement) here, here, and here.)

Brad does an excellent job of explaining how using historical resources can help us navigate between, on the one extreme, a call for hyper-precision in matters of dogmatic theology, a call which leads to constant separations and, at the other extreme, an indifference to Christianity's core beliefs in the vain hope that all our problems will disappear if we sit around the campfire singing kumbaya.

Distinguishing the doctrines that are essential from those that are peripheral is not itself a peripheral matter. Neither, however, is it one that is easily resolved. Developing a doctrine of "essentials" is not a DIY project. Brad explains that one important tool in the winnowing process is weighing the varying judgments in the Christian tradition with respect to what counts as an essential.

By analogy to what I explain to my Contracts students, identifying what is a Christian essential is something like finding the ratio decidendi among the several oral judgments of an English appellate court. Just as the lawyer confronted with the transcripts of oral decisions rendered without much regard to each other must look hard to find the common legal reasoning among the judgments that agree in result, so too must the contemporary Christian community compare the theological conclusions of its forebears to find what has been held in common across the spectrum of time and place. 

Other matters of theological conclusion--what I've labeled as peripheral--are not unimportant. The process of doing theology is not done. It is, however, important to acknowledge that, just as there is more theologizing to do, that there is an "essential" center that should be acknowledged by anyone claiming to be part of the tradition called Christian.