LE: Lincoln and Human Nature

Often times, human nature is revealed people during times of hardship.  I think, (and this is just speculation) that perhaps the hardships that Lincoln went through growing up resulted in a man that knew his own character quite well, and understood the character of others quite well also.

This explains the lack of grudge holding, the patience, and sympathy towards many people and groups of people that we may find surprising, such as the Southern lifestyle, his cabinet members, generals, etc.

Thoughts?

LE: Miller and the Culture of Morality in American Politics

When reading the chapter on Miller, and seeing the stance of the Liberty Party in the election of Clay vs. Polk, their moral reasoning cost Clay the election.  This was certainly not the only time that a third party cost the election for the party that it actually had more in common with.

The idea that "morally speaking," one should not vote for a given candidate, for reason 'x,' and (supposing this person is against reasons x,y, and z) causing a different candidate of whom supports reasons x,y, and z (and not just x, as the given candidate did) seems to be a deeply flawed concept, which places more emphasis on deflecting personal responsibility (wiping the hands clean, if you will) than actually acting in a way that ensures the greatest moral outcome, relative to the voter's moral system.

I think Miller, in dissecting the moral argument of the Liberty Party, via Licoln's original argument, unearths an important aspect of American Politics; that is seems, the only way to introduce a 'moral' theory, or idea into a party platform involves great oversimplification, and inevitably, ruins the moral principle that originated the idea.

It seems that most politicians do not attempt to integrate any sort of complex moral reasoning into a party platform, because it either cannot be digested by the average voter, or because it can easily be taken out of context by political pundits.  Any 'moral' theory that survives this scrutiny becomes thwarted by simplification and quite often, becomes a prideful and dogmatic 'do' or 'do not' imperative.  Thoughts?

LE: Solutions for Slavery: Gopnik vs. the Whig Party

We've discussed a lot in class that suggests that Lincoln, as a good Whig party member, thought that slavery could be extinguished simply by containing it, and letting it die out.  Obviously, the science of fertilizers could have proved Lincoln very wrong.

Nonetheless, I got the feeling from the packet by Gopnik that he personally thought that Lincoln would have been able to deal with slavery using legal strategy, if the Union stayed together- this idea is clearly a little different than the Whig party's more indirect way of extinction- could both factors have been possible ways that Lincoln planned on dealing with slavery, had the country stayed intact?

Clearly, the Whig extinction theory would still have needed to involve legal theory, but once again, (to me) it seems that Gopnik was trying to say that Lincoln could've (eventually) ended slavery by actually living up to the phrase 'equality under the law,' and not by implementing a strategic and indirect plan which the Whigs had championed at the time.  Thoughts?

LE: The Power of Legacy, Legend, and Idealism

We've discussed at length in class about the 'legend' of Abraham Lincoln.  Many of the founding fathers also fall into this category, and are even called 'demi-gods' by some historians.  The legacy that a person leaves can often create the legend that future generations will come to know, and from legend, rises idealism.  When looking at the 'legend' of any person, the muddiness of their true human life is swept under the rug, and idealism fits the person who wishes to 'model after,' said person.

Perhaps, this is why many historians, scholars, and people often go through great lengths to debunk legends, not out of malice for that person, but out of fear, that the truths they stood for, the ideas that they championed, would become distorted or superimposed on others, solely due to the nostalgic and favorable weathering of time.

Why does this happen so often?  Historical figures never cease to be idealized, enshrined, and immortalized.  It seems to me, that the human mind has a remarkable capacity to believe that a given person was or is or will be great, in every way possible.  This capacity is coupled with a second remarkable capacity- the ability to become surprised every time we discover that every human life is inherently messy, and every decision, person, and idea, is always more complex than it seems.

LE: Mill on the Voice of the Slaves

I think Mill had a great point in his letter, that the voice of the South was championed by very few, and very wealthy aristocrats.  Mill goes on to say that even if slaves in the South were not to be counted as full humans, their suffering should still be taken into account.  With that being said, Mill clearly recognizes the slaves in the South as fully functioning and unequivocally equal to all other human beings.

What strikes me is this; that even if Mill were to hold the opinion that many people had at the time, that the slaves were not equal to free men, his philosophy still lead him to believe that the South was not justified in seceding or simply in speaking for them.  Thoughts?

LE: Lincoln and Unity

It seemed like we narrowed down the driving forces behind Lincoln's to the family analogy, his understanding and dedication to his job as President, and the by-products of his devotion to the whig party.

Through the course so far, I would say that all three of these played a role in his vindictiveness to save the Union.  With that being said, which one do you think had the greatest influence?

LE: Is Mill really that different from Kant?

Despite the provocative title, we are quite aware just how polarizing the theories of deontology and utilitarianism can be.  However, I noticed some key words in Mill that really evoked the thoughts of Kant.

Clearly, Mill demonstrates a more complex view of happiness, differentiating it from the classical hedonistic view predominated in many Utilitarian theories before his own.  Mill also calls agents to “be as strictly impartial as a disinterested and benevolent spectator,” when comparing his or her own happiness with that of others.  

Mill’s nuanced theory almost sounds Kantian at this point; he has kept the general theory of Utilitarianism, but has revamped a more comprehensive view of happiness, factored in the happiness of both the agents giving and receiving the action, and has called the agent (in a theory which famously champions self-interest and best interest) to be as disinterested and as impartial as possible.

Many prominent philosophers over the years have had incredibly nuanced theories- of these theories, there exist parallel versions, quite popular and very much simplified, and these are often the ones that are implemented in the real world, and discussed by persons with no prior knowledge of the subject.  (Marx and Adam Smith come to mind).  

Do we overemphasize the difference between Mill and Kant?

LE: Using Reason to Defy Reason

Kant explains to us just why certain aspects of his theory are unattainable, and can only be identified by the human mind.  My SLAP addresses this issue specifically-

1.      Why does Kant make claims devoid of the rational human mind while at the same time embedding his ideas within the same realm of practical reason?  

      Thoughts?

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LE: Kant on the Worthy Purpose of Reason

While I do agree with the idea that, should one give Kant a close reading, the absence of happiness from acting in a genuine moral fashion is probably not entirely true.  However, I did get the feeling at times when I was reading Kant's more rhetorical and eloquent passages, a tragic tone, that perhaps Kant identified with; that happiness (in the eudaimonic sense) is often times is what the most intellectually reasonable and moral agents must sacrifice.

"And we must at least admit that a morose attitude or ingratitude to the goodness with which the world is governed is by no means found always among those who temper or refute the boasting eulogies which are given of the advantages of happiness and contentment with which reason is supposed to supply us.  Rather, their judgment is based on the Idea of another and far more worthy purpose of their existence for which, instead of happiness, their reason is properly intended; this purpose, therefore, being the supreme condition to which the private purposes of men must, for the most part, defer" (Kant, 854).  

Thoughts?

LE: A Key to Lincoln's Aristotelian Virtue

When we discussed Aristotle's virtues today in class, we articulated the idea that for every virtue, (as he writes) has two negative and un-virtuous character traits, both lacking and secondly, overcompensating for the virtue.  For courage lies between cowardice and foolhardiness, temperance between indulgence and intolerance, and so on.

Perhaps the concept of balance that comes with exemplifying virtue is more deliberative for some people, rather than those of whom certain virtue is habituated to the point of intuitively quick actions when conflict arises.  Lincoln was notably cautious and deliberative, as we have established as well.  Thoughts?

LE: The Individual, and Moral Examination

Today in class, we discussed Aristotle's take on the thought experiment involving the killing (or not) of one person, to prevent the subsequent murder of ten people.  I was very satisfied with the conclusions we reached in class.  I do think that Aristotle would not even begin to analyze a scenario like that, and the question would have no relevance to his theory either.

I did however, think that the way in which Aristotle examines the individual versus the community (polis) and the relevance and effect they have on one another, compared to many loci of cultures in eastern nations, where the community, external factors, or state all take priority over the individual, whether the question is level of importance, or simply the causal factors from community to individual, rather than individual to community.  Thoughts?

LE: Aristotle's Theory of Forms

We talked in class today about one of the key differences between Aristotle's view of forms, compared to Plato's theory of Forms.

One of the key differences we highlighted in is powerfully illustrated in the painting, The School of Athens, by Raphael, where one can see the hand of Plato pointing upwards, alluding to an existentialist world, where the realm of true forms exist.  Aristotle defers to the ground, expressing his view that true forms reside within their physical objects, and are inexplicably part of the object, yet invisible to the human eye (as well as indivisible from the physical object itself).

                                                                                              

                                                                               

Dealing with these concepts can be particularly challenging at times, but here is an example that helped me grasp the concept.

Imagine a red ball.  Or just hold a real one.  As we discussed in class, multiple forms can be present in an object.  We know this, because we can see simpler objects combining to create other, more complex ones.  A few forms clearly illustrated in the ball are a circle, and the form of the color red.  It is very clear that both of these forms are part of the ball, as it is defined by the very characteristics that the forms give it.  However,

what if I asked you to show me the redness of the ball? Or to show me just the circular quality of the ball?

Despite the fact that we can identify these forms as part of the physical object, we can in no way separate them from other forms, or the object itself. This roughly illustrates Aristotle's view of forms and their place in the physical world.

CLP: Judicial Restraint Redefined

I suggested in class today that looking at judicial restraint from a different perspective would help us see it as a more comprehensive and capable theory of adjudication.  In order to do this, we need to reject to common conceptions of judicial restraint-

1.  Judicial restraint is literally the opposite of judicial activism.
2.  Judicial restraint always defers to the will of the majority via the executive or legislative branches of government.

I think different conceptions of judicial restraint are merely fragmented in-articulations of treating law's primary function of protecting the democratic process- and I think the best prototype for the judicial restraint I am defining is Oliver Wendell Holmes, Jr.

Holmes exhibits classic restraint in his dissent in Lochner, refusing to endorse a given economic theory.  However, he became a famous advocate for free speech protection; his dissent in Abrams v. US protected free speech by actively rebuking the power of congress through the Espionage Act.  Some see Holmes' judicial restraint become inconsistent when looking at his free speech opinions.  I see his opinions as embracing a more robust version of judicial restraint.

Holmes' jurisprudence is not a restraint from the will of the majority;  his restraint lies in keeping his judicial power from infringing upon the democratic process.

WR: Two Steps Towards Religious Tolerance

We talked today about how literary treatment of religious doctrine would lead to the elimination of intolerant activities from extremist groups.  With that being said, I think that step, if possible, is very far away.  Here are two key concepts that I do think can be/are being popularized in contemporary religious communities, and can produce a step towards a decrease in religious intolerance.

Religious Pluralism:  While it is a fact of reality, that numerous religions exist, the belief that they all have a place in the world does not.  One thing we discussed, in Islam especially, was that Muhammad was the prophet that was chosen to bring the Arabic peoples their own religious text.  They did not even think of attempting to convert Christians or Jews, as they already had their own text.  Embracing religious pluralism requires theologians to give up the power struggle of the big monotheistic religions that was fostered especially during colonial imperialism in Europe.

As the Bhagavad-Gita states, "All paths, Arjuna, lead to me."  Perhaps accepting that all religions lead to God can help followers of all religions coexist together, and eliminate the need for evangelical mission work or conflict fueled by dogmatic mandates.

A Medium of Reason:  Dogmatism, in Christianity especially, is held in fairly high esteem.  Creating a medium of public reason, as the only way in which to project political views upon others, would be another step towards tolerance.  While many different people have many different opinions on religious dogma, I think relagating dogmatic views to one's private moral compass would do a lot do decrease the polarizing nature of religious dogma, in American politics especially.

WR: The Qur'an's 'Just War' Theory

Karen Armstrong comments on the Qur'an making known a just war theory, as a practical idea, alluding to the fact that there will always be conflict between nations and nation states.  This has often been a criticism of the turn-the-other-cheek philosophy of Christianity; in other words, the idea of complete nonviolence (not even self-defense) is unrealistic in a world of (somewhat) constant conflict.  Thoughts?

CLP: Circumstance of Principle

Many times, the circumstances that are required in order to give rise to more principle within a legal society are odd, extreme, or very specific.  This does make sense, however; if the cases did not have these peculiar qualities, it is very likely that simple precedent would have been enough for a lower level judge to make a perfectly valid ruling.

With that being said, I think the qualities of these cases are actually important to the United States especially.  It teaches us a lesson; hard cases in the supreme court are often times not about the case itself, but the rhetoric that emerges, as judges try to articulate nuanced differences between the one case, and countless others that weren't granted cert. by the court.

The fact that most free speech cases involve either racist advocates, or anti-communist suppression, contributes to the idea that the idea of free speech involved in the cases is more important than the normative value contained in the circumstance in the speech.

CLP: The role of international law in our Constitution

Having transitioned from international criminal into Constitutional Law, I wanted to pose this question- how does/can international standards of proper punishment play into our country?

For example, in Roper v. Simmons, Anthony Kennedy's majority opinion (5-4) ruled that it was unconstitutional to administer the death penalty to anyone 18 or younger, citing scientific and psychological studies based around maturity and ability to comprehend the full scope of an action.  He also cited a group of the only countries to execute a convicted person since 1990:  Iran, Pakistan, Nigeria, Yemen, Saudi Arabia, China, the Democratic Republic of Congo- and the United States.

Using the cruel and unusual punishment theory, it is clear that in this company, capital punishment is very unusual in the 21st century.  However, many judges and lawyers in the United States today gave Kennedy a lot of grief for the inclusion of international norms in a national judicial opinion.  Of course, since the US has always had capital punishment, and lethal injection has been ruled to be 'not cruel,' how can we deem execution unusual, unless we take a step back and look at the international community?

CLP: Finding the Balance Between Responsibility and Retribution

In class today, it seemed that we came to the consensus that while mens rea contributes to the cyclical nature of retributive punishment with taking responsibility for a criminal act, I think we can actually separate the two.  

It lies in this assertion:  that, there is absolutely no reason, whatsoever, why convicted criminals should be "worse off," than citizens.  

Perhaps the only lacking quality of life necessary would be a diminished autonomy.   If we take seriously the true goal of the prison system as corrective justice, than a diminished quality of life cannot and should not be justified.  A corrective system is not retributive or deterrent, but strives to restore the individual to full societal participation.  This cannot be done unless a relatively comfortable standard of living, inclusive of mental and physical health, is established. 

So, what if we combined this corrective mentality (for real, this time) and kept mens rea?  Is there anything wrong with taking responsibility for an action, and then allowing oneself to participate in a lifestyle in which helps the individual cope with and later correct the problems that caused the criminal action in the first place?  

The retributive notion of punishment can easily be mixed with the (mens rea) notion of accepting responsibility of an action, but I would argue that these are linked via thousands of years of proportional punishment in judicial systems, and with an intense psychological attraction to see wrongdoers "pay" for their wrongdoing. Beyond tradition and a psychological, socio-cultural propensity for vengeance, in no way is punishing criminals via inadequate living conditions acceptable, holding of course, that the primary goal of the system of justice is indeed, corrective.

WR: Setting the Stage for Allah

In chapter one specifically, Armstrong really discusses the socioeconomic conditions of Arabia and how they changed in the few centuries leading up to Muhammad's first revelations.  In my opinion, the increase of wealth, due to the creation of a stationary lifestyle in big cities, like Mecca, contributed to a move away from the fatalist life view of the Bedouins.  The Quraysh especially, now viewed wealth as the solution to a former life of constant struggle and inevitable, miserable, death.  One of the prominent messages of Muhammad early on his teachings, was the idea that only Allah has the answers, and the solutions to the lives of humans.

How much did the changing socioeconomic conditions of Arabia influence the receptiveness of Islam?  (It seems that it helped some and hurt others)

WR: Confucian Thought on Accurate Stipulation

A thought was tossed around in class this morning that caught my attention; does Confucian thought, in regards to using the proper method of address hold sway in the contemporary political landscape?

In other words, do terms like collateral damage, national security, or nicknames like the defense of marriage act, the war on drugs, terror, etc. dilute or desensitize citizens from realizing a) what they are saying b) the magnitude of what they say and c) what policies supporting or disproving the terms really entail?

CLP: Tolerance in Mill and Devlin

Both Mill and Devlin include the theme of tolerance in their writings- Mill uses tolerance as means for extending the individual rights of others, while Devlin uses tolerance as a means through which a society progresses, or digresses, through a change in public opinion on moral issues.

With that being said, both have different outlooks on society.  Mill puts faith in generational progress.  Moral issues are either assimilated into law by the ensuing generation, or they are simply recycled into the following generation with a more accurate and empathetic educational process, from parent/guardian to child.  Devlin, on the other hand, views generational progression as possibly negative- that progression does not necessarily change moral acceptance, but merely bolsters the tolerance in which immoral acts are publicly committed.

My question is this- does Devlin's view of generational progression in morality really differ that much from the positive one of Mill?  Or, perhaps, does his argument through gay and lesbian rights unfairly polarize and twist his methods of reasoning?

CLP: Collectivism and the Law

We didn't really discuss the chapter on Japanese law this week, so I thought a question would be worth mentioning on the blogs.  The collectivistic society has less individually exclusive intellectual property laws, and more restrictive economic law (price fixation, nationalizing industries, ect.) all in the name of the 'betterment of society.'

A gain by the society is preferred to, and acutally better than, individual gain.  Just as western thought champions the idea that every player on the team plays his best, and therefore, makes the team better, eastern thought (Japan in this case) tells the story of the team members that sacrifice personal gain for incremental benefits of the team.

Could we in the United States use more of a collectivist attitude towards the law, and our economy?  Could Japan use more individualistic notions in theirs?  Is this a matter of exclusive theories, or degrees?

WR: Shame vs. Guilt

We talked a lot this week about the aspect of shame in Confucian thought, versus the nonexistent (in Confucian thought) notion of guilt.  For example shame implies public image, versus the inner corruptness associated with westernized notions of guilt.

Moreover, punishments differ- if one stipulates that a primary goal of punishment is correction, than it follows that shame would not need correction, but prevention- one does not need to correct what is not broken in the first place.  Conversely the broken or corrupt "guilty" person would require corrective or retributive measures to return to society.  With that being said, if a society holds the notion of shame over guilt, and therefore, no retribution is needed for one's crimes, then where do they stand as/or not as a fully functioning member, and can they return (without retribution) or do they never loose their status to begin with?

My question is, should shame or guilt make a difference as to whether or not a convicted criminal member should be a represented member in society?  I am operating under the assumption that the society is democratic and representation constitutes voting rights.

WR: The Pragmatic Value of the Power of Li

We discussed today several miscalculations of Confucianism.  In some cases, the interpreter saw the importance of ceremony not as a the magic of human interaction and harmonious living, but as a society with rigid, unrelenting social structure.

Ideas of good, and idealistic intent are different in many ways than formalist legal theory, largely because, laws are partially defined by their function.  For example, Confucianism in principle is very principled and if understood charitably, has very positive implications for human interaction.  However, a law with great ideological intention is not considered to be a good law if it's function does not produce those same positive results.  My question is this:  Should Confucian thought stay in the realm of philosophical theory, applied by it's believers, or should it be integrated (legally) into a given society?

CLP: Honore and Locke

Today in class, I asked the question:

Does Honore's refutation of Nozick serve as a strong, logical argument for commonly shared natural resources, and a substitute for the similar conclusion reached by theologically based assertion of John Locke?

 Nozick's presuppositions on acquisition and  of property are not justified, nor are they based in an objective claim about the nature of labor and natural goods.  Honore, in short, says that Nozick's theory lacks not only moral high ground, but historical accuracy as well.

1.  Moral Contention:  Nozick's theory states that ownership of property is not only completely exclusive, yet indefinite.  This would not allow for consensual transfers of property.  In other words, if the original acquisition of property by a person involves consensus from a society, than it would make sense that good intentions come with that agreement, hence, the availability of certain proviso's that Locke suggests, and much more robust ones (than Nozicks's interpretation of them).  Nozick does indeed comment on the impossibility of everyone in a given society to consent to one's acquisition of a product, especially one that has until recently been hidden from discovery.  However, if one begins with the premise that all natural goods are commonly shared by all, than would not tacit agreements suffice?  In this event, acquisition would be accompanied by the subsequent assumptions that the eventual property would be utilized in its entirety, provisos included, of course.

2.  Historical Accuracy:  Honore suggests that Nozick's core premises, discussed earlier, are based in Roman Law, through the lens of western societal bias.  Why shouldn't societies which are closer to nature be examined for their own treatment of property?  Honore makes a compelling case for some eastern oriental societies, and some older pre-European American societies in which property is very much viewed similarly to Locke's theory of commonly shared goods.

WR: Myths and the Truth

The words spoken by Jesus, as recorded and interpreted in the gospels, as Crossan has asserted, may not be literally true, to varying degrees, and in different passages of text.  However, might these words, in some sense, reflect with great accuracy the intent of Jesus, or at the very least, the impressions he had on his followers?

Operating on Crossan's core premises, would the "true myths," in the gospel be more effective at conveying the intent of Jesus?  Of course, I realize that the authors may have misinterpreted Jesus' teachings, so I guess my question is more along the lines of, simply, assuming that there is no amount of substantial misinterpretation, can "true myths" be more powerful and directive than say, a literal and recorded dialogue?

CLP: Smith on Roe v. Wade

Seeing as we didn't get into the details of the chapter on Smith today, I just wanted to pose a question:  

She observed that the "right to privacy," was heavily leaned on in the decision Roe v. Wade.  From a feminist perspective, would it be more beneficial to cite the equal protection clause, as it pertains to gender?

Even from a practical standpoint, grounding precedent in the equal protection clause is surely a better way to ensure permanence than grounding it in a "right to privacy," which is not explicitly in the Constitution, and for better or worse, is not even recognized as legitimate by some judges.

WR: Greek and Jewish Influence on Christianity

In class today, we discussed how various facets of Christian ideology stem from different writings or traditions.  In particular, the general distaste for the body in some sects, Roman Catholicism included, stem from Greek thought.

This brought to mind one of the most prominent Christian theologian and philosopher of his time, St. Thomas Aquinas, who was very much a Platonist.  Seeing Plato's analogies of the body as a microcosm of his Republic, and for virtually any other argument by analogy made by the character Socrates, this connection made perfect sense.

To respond in a question in class, perhaps Christianity in its early forms did appeal to Platonists like Aquinas, who saw underlining similarities in the  moral teachings of Jesus and Plato.  Of course, they are different in many aspects as well, but I think the similarities were enough for many scribal elites of the early centuries CE.

CLP: A Response to Kennedy

In class today, we struggled to issue a Dworkinian response to Kennedy's critique.  Here's the one I brought up in class, articulated slightly better-

Debasing Kennedy's assumption of the subtleties between adjudication and legislation:
Kennedy stipulates adjudication as applying the law, and legislation as making the law.  Moreover, legislative intent is laden with political ideology, and most likely, partisan bias.  Adjudication, he states, does not.  While judicial decisions may make one party much happier than the other, he stresses that the process of reasoning itself is untouched by partisan ideological leaning, if of course, the judge is competent.

With that being said, how is can this distinction really be made?  Dworkin does state that by mere virtue of reading and applying law, we interpret it, and when we interpret things, they are subject to our experiences, values, and presupposed notions of how things (or the law in this case) work.  Can Kennedy really claim that even the best judges can steer clear of partisan bias, as if it can be immediately recognized and avoided?  Bush v. Gore is a striking example of how the best judges in the country (and a relatively strong group in the history of the Supreme Court, I might add) can slip into the partisan rift.  This argument is not so much defending Dworkin's, as it is attacking Kennedy's from the Dworkinian perspective.

I'm sure there does exist a much stronger Dworkinian response to Kennedy.  Thoughts?

WR: John the Baptist and Jesus

It was really interesting reading about Jesus' relation with John, and how their two philosophies compared and contrasted with each other.  Even more so, was observing the initial acceptance, for lack of a better word, on the part of John, by Jesus.  Consequently, we see a much different message (compared to John's apocalyptic repentance) from Jesus after John's execution.

How much of an impact did John have on Jesus?  Was Jesus loosely aligning himself with John's message as a political gesture, or did Jesus' views really do change?

CLP: Dworkin v. Hart

In class on Tuesday, we discussed the basic principles of the jurisprudence of both Dworkin and Hart.  We started creating the mock trial around Dworkin's example of a 'hard case,' Riggs v. Palmer.

One of Hart's biggest pros, which we discussed on Tuesday, was the idea that even a positivist can (partially) remedy hard cases, by creating more/specific laws that combat extenuating circumstances.  Of course, I think we conclusively argued that this idea does not entail the creation of a law which states "no man ought to benefit from his own wrong."  The political and moral charge in those words and their relative ambiguity would create nightmares for judges.

What Hart would argue would be to created laws or contracts which included a clause, specific to the beneficiary, which would prevent him or her from illegally acting to "legally," gain an inheritance.

Thoughts/new ground covered Thursday?

CLP: Liberty of Contract in Lochner

In Lochner v. New York, the Supreme Court struck down a New York law limiting the hours an employer (John Lochner in this case) could require of his or her workers.  "Liberty of Contract," was central in Justice Peckham's majority (5-4) opinion.

"...Under that provision no State can deprive any person of life, liberty or property without due process of law.  The right to purchase or to sell labor is part of the liberty protected by this amendment..." 

Liberty of Contract, in this case, upheld the right of the workers to freely negotiate their own wages and hours; having legislation passed to protect their own safety was unconstitutional  simply because it infringed upon their right to negotiate their own contract.  Reading this today, I couldn't help finding the idea ironic, almost to a humorous point.

On another note, the beauty of having numerous justices on a court plays it's trump card when stare decisis is overturned, as the concept of "liberty of contract," later was.  The dissenting opinions of other justices almost provide a cleaner and more decisive transition.  In other words, usually, when precedent is overturned, the majority opinion falls upon a preexisting, and formerly, a dissenting one.  In Lochner, I found Justice Holmes' dissenting opinion to be particularly ahead of his time (and a classic adherence to his personal philosophy of judicial restraint).

"This case is decided upon an economic theory which a large part of the country does not entertain...I strongly believe that my agreement or disagreement [of the economic theory] has nothing to do with the right of a majority to embody their opinions in law...I think the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law."

WR: Operating on Metaphysical Assumption

Our discussion in class this morning struck a resonant chord with me, particularly due to my consistent exposure to the methods in which academics study philosophers, or any academic for that matter.  More often than not, when reading one particular scholar for an extended period of time, the professor will first direct students toward her or his metaphysical scholarship.  For example, reading Plato makes a lot more sense when one is familiar with his Theory of Forms.

In no way am I comparing Plato with Crossan; I'm simply expressing the usefulness of operating on the same metaphysical assumptions of the scholar in which one is studying.  It gives the student a much greater capacity for a charitable and insightful read of the author.

WR: Chapter 11 in the Gita

In class today, we largely discussed chapter 11 of the Gita, and for good reason.  Krishna reveals himself in his (infinite) totality, and evokes an grandiose measure of awe and terror from Arjuna.  One passage in particular stuck out to me, however.

"I am time, the destroyer of all; I have come to consume the world.  Even without your participation,  all the warriors gathered here will die" (11.32).

I think this verse can come across as contradictory on the surface; Krishna seems to be proclaiming the eminent death of all, karma aside ("even without your participation...").  I think this verse is remarkably cohesive with the rest of the Gita, however.  Krishna is a human incarnate of Vishnu, one of the gods, and in that sense, is "everything."  Therefore, it makes perfect sense for Krishna to claim, "I am time..."

Moreover, if Krishna is time, and time (whether we like it or not) kills us, albeit, some slower or faster than others, it would still follow that Krishna is the destroyer of all.  Even that line, although it seems grim, cannot be taken with adherence to the very first chapter, in which Krishna refers to physical, bodily, death, as the shedding of an old coat.

CLP: The Line of Best Fit

In class today, we spoke of the line of "best fit," as it pertains to legal theory.  I think it is fairly obvious that this is a generalization, and in fact, the law and the principles that are factored into interpreting past law are very messy.  With that being said, in the United States at least, in my opinion, the line of best fit can be best applied to our basic first amendment freedoms.

For example, our freedom of speech is a right which many think transcends circumstance; in other words, situations in which the circumstances are different can still expect (reasonably, of course) that one's freedom of speech, or expression, can be protected.

Of course, many points that the line of best fit surrounds are not on the line; some can be a good distance away.  In the case of free speech in the US, we have found out over the centuries various limitations of speech.  As a general rule of thumb, whenever this speech hinders the bureaucratic process of government (draft card burning) or whenever speech translates to action which presents "clear and present danger," we begin to see limitations.  Moreover, speech has more restrictions (appropriateness, time and manner) when it comes to schools.  All of these different cases, hypothetically speaking, would lie somewhere along the line of best fit that is the freedom of speech.

WR: Grasping "Brahman," from the Judea-Christian Lense

In class on Tuesday, we discussed the concept of attaining enlightenment at the end one's life.  It's easy to see how one from a  Judea-Christian viewpoint can mistakenly equate the concept of heaven with enlightenment.

In my opinion, the biggest difference is the idea of judgement.  Judea-Christian followers believe that they will be judged by God upon their worldly death.  The Hindu concept of enlightenment is similar in some regards yet very different in others.  A person's Karma is dependent on their attainment of enlightenment.  This has nothing to do with being judged; one's actions, and Karma, merely contribute to reaching the metaphysical idea of enlightenment.  One either does or does not attain it at the end of a life, regardless of any judgement.

My one question is this; if Karma is based on action, what about intent?  Action A can have drastically different "ripples" for persons B and C.

CLP: The 'Hegemonic Consciousness' of Law

"[Gramsci]...observed that social order is maintained by a system of beliefs which are accepted as 'common sense' and part of the natural order- even by those who are actually subordinated to it.  In other words, these ideas are treaded as eternal and necessary whereas they really reflect only the transitory, arbitrary interests of the dominant elite" (Wacks, 95).  

Gramsci's (marxist) theory makes the most sense (for the sake of argument) with law regulating or deregulating economic policy, and the judicial review thereof.  For example, while the Supreme Court struck down a good deal of progressive, worker friendly legislation in the 1920's, the New Deal court stepped aside during the presidency of FDR.  While there are clearly many different actors and variables which contribute to the situation in which the Supreme Court exercises judicial review, its worth considering that the will of the power players in our country (big business in the 20s, and conversely, the enormous popularity of FDR) have an affect on the decisions of the courts.

CLP: Judges as "Literary Critics"

Ronald Dworkin gives the example of the story of morality and law as being one of a giant chain novel, and the judge as a novelist, and when he interprets prior novels (i.e., using precedent in hard cases).  However, do judges "make" laws? Or interpret them?  Are those terms even distinguishable?

While some legal positivists would say that the judge does indeed make decisions, in some cases, based on "personal discretion," Dworkin argues that every decision is an interpretation, and every interpretation contains evaluation.  Evaluation inherently contains some kind of moral judgement.  Therefore, every decision contains moral judgement, considering, of course, his premises hold up.  If every decision contains moral judgement, and laws are merely legislated forms of moral judgement, than do judges make laws, or uncover them?

More accurate and constructive "interpretations," of the United States Constitution have led to judicial decisions which confirm universal human civil rights, suffrage, ect.  The fact that some of these decisions came along later than others does not imply that they have not always existed within the human race, for our entire existence.  With that being said, are those laws created, or as John Marshall famously said, do judges merely, "say what the law is."  One cannot create or make what has always existed.

WR: Can Illusion still make "ripples?"

We touched on the complex metaphysics of the Hindu religion in class this week, and ended up with the seemingly paradoxical concept of the unchanging Self versus the ripple affects that our actions (Karma) can have on others.  Our discussion merely grazed the depth of the concept, but one pertinent question asked, how can we create change when everything we physically are and see could be an illusion?

I think perhaps that, supposing this were true, illusion would not necessarily entail the inability to create "ripples."  If persons A and B have experiences based in illusion, what's to say that their actions would not  have effects, in their disillusioned experiences, on each other?

Introduction

Hey Guys!

My name is Dominick Cooper, and I'm a second year student at MCLA.  I'm double majoring in Political Science and Philosophy, with a minor in American History.  I didn't really find philosophy until I came to MCLA, although I've found philosophical thought to be one of the most intellectually rewarding endeavors I've participated in.  With that being said, I'm really looking forward to the class this semester!