Gregory the Great. Register of Epistles (590-604).

September 18, 2007

Generic Book“My writings which I have sent to the peasants cause thou to be read over throughout all the estates, that they may know in what points to defend themselves, under our authority, against acts of wrong; and let either the originals or copies be given to them. See that thou observe everything without abatement: for, with regard to what I have written to thee for abservance of justice, I am absolved; and, if thou art negligent, thou art guilty.”

Pope Gregory the Great wrote a lot of letters, and well, I read them all. These letters fascinating look into the medieval world through the eyes of a Pope. They are also packed full legal tidbits. The letters often act as the Pope’s conveyance of his official rulings on a number of different matters. He, as the Pope, was the judge on numerous canon law activities.

As these are letters (and owing to the difficulties of research law this old), instead af searching out a specific legal theme that runs through them all, I am just going to list the highlights. Of course, I’m positive I’ve missed some. Enjoy.

IX: Gregory sends Peter the Subdeacon to investigate a property dispute in which a group of monks are having their land encroached upon by a farm owned by the church. Gregory rules that if the land has been in their possession for 40 years they are the rightful owners even if it doesn’t benefit the church. If the boundary has been disputed in the last 40 years though then Peter is to appoint arbiters to resolve the problem.

X: Gregory responds to a petition from a group of Jews who claim to have license to hold under the churches authority a synagogue on the grounds of church property. He rules that if the voices from the synagogue can be heard in the church. He commands that if they are expelled that they should be given a new place of worship and one that will keep any complaint from being levied. He notes that the Jews “live under the protection of Roman laws” and therefore have the right to worship. He also notes though that the Jews should not possess Christian slaves.

XIX: Gregory overrules the ruling of a Synod that condemned Archdeacon Honoratus. He does this on the ground that the ruling ofthe synod was biased, stating that “no one who is innocent should be deposed from the ministry of his order unjustly.” He commands that the Archdeacon be restored and that if there is still a problem the Archdeacon should come and present himself to Gregory.

XXV: Gregory first discusses, in this letter to numerous patriarchs, the qualities of a ruler: “He orders well the authority he has recieved who has both learnt to maintain it and keep it in check.” This is a fairly good statement of what good law is, it creates order but does not get out of hand. He then says that “the virtue of humility ought to be so maintained that the rights of government be not relaxed.” He means that the ruler should not be so humble as to relax his own authority and lose the respect of his subordinates. At the end of the letter Gregory upholds the validity of four law creating councils that happened before: the Nicene, the Constatinople, the first Ephesine, and the Chalcedon.

XXXIII: Gregory calls for a synod to determine the guilt of a Blandus who has been held for some time by Romanus Patrician and Exarch of Italy. He asks for his release if he is not being held for a crime.

XXXIV: Gregory declares that “according to the ordinance of the law, it is not lawful to walk on the Sabbath.”

XXXVI: He writes to Peter the Subdeacon that the guidelines Gregory gave him must be “diligently perused” so as to keep Bishops from entangling themselves in secular causes except to the extent that they need to assist the poor. He then notes that their have been reports that in the past that property has been taken by the church without judicial process. He request Peter upon discovery of such a matter to make restoration to a claimant. He also requests that Peter investigate reports of people that have been enslaved illegally without trial. He wants these slave’s possessors dispossessed “by regular process of law.” He also mentions that any decree made under pain is anathema. Early evidence of the illegality of torture.

XLII: Gregory declares that Monks should not migrate from monastary to monastary, they should not hold property, should not have wives, and they should not, if they were once priests, return to being a priest.

XLIII: Gregory is rejoicing at the conversion of King Richard to Catholicism and to a “citizen of the eternal realm.” This comments a bit on the idea of jurisdiction between temporal and divine realms. Or maybe I’m stretching it.

XLIV: He rights to Peter that payment for grain should be in accordance with the Market. He then instructs Peter on collecting of taxes asking him to draw up “Charters o security” which declare what each person is to pay. He also bars the use of “unjust” weights for exacting payments. He rules that relatives of farmers on who live on church property shall have the right to succeed them. Next he decrees that a person who commits a crime shall be the only person punished and not his family as well. This is a long letter in which Gregory also rules on specific cases.

XLVIII: Gregory requests that Theodorus, Duke of Sardinia, send a property dispute to trial so it may be resolved. He also asks Theodorus to look into a will that a person wants to have annulled.

LXII: In this letter he seeks to have a woman saved from the “annoyance of legal proceedings,” but to still submit to a “just judgement.”

VI: Gregory mentions a Demetrius who “has been found to be involved with transactions to such an extent and of such a kind that, if he had recieved judgement without mercy according to the character of his deeds, he would undoubtedly have been condemned to a most hard death by both divine and human laws.”

XIV: The lady Timothea wishes to found and oratory in Ariminum. Gregory lets the local bishop know what must be conveyed to the church in trust for this to be done.

XVIII: Gregory seeks to resolve a dispute between Natalis and Honoratus and while doing so “keep the rule of justice.” The suit involves some finer points of canon law including the use of a pallium, which is a garment granted by the Pope to a church which says something about jurisdiction (I think).

XIX & XX: These two letters follow up on the dispute addressed in XVIII.

XXXIV: Gregory admonishes Maximianus, Bishop of Syracuse to not be so harsh with his punishments when ruling on cases.

XLI: If there is a property dispute between monks and the Church, then the dispute shall be taken up quickly by “selected abbots and other fathers.” A great deal of this letter deals with what an abbot can and con not do under canon law.

XLIX: Gregory sends to trial Januarius, Archbishop for “a mass of complaints . . . against . . . his fraternity.” One of these has to deal with the unjust excommunication of Isidore.

I: Gregory writes to Peterm a subdeacon, about a recent crime of sedition. Gregory asks Peter to punish those that are manifestly guilty. Additionally, he is sending Scholasticus, a judge, there to investigate the matter and bring to trial any others.

V: Here we have a bit of jurisdiction. The Catholic church claims both divine and temporal jurisdiction. Gregory in this letter addresses an instance where a laymen has judged improperly. He says that when judged wrongfully, the decision of the secular judge should be resisted with “moderate authority.” Gregory makes it clear, though, that acting against such judgements “is not to act against the law, but to support law.”

VI: In this letter Gregory acts as an appelate judge. He writes to John, bishop of Prima Justiniana that he has recieved a complaint from Adrian, bishop of Thebae that John had deposed him unjustly. Gregory states that he gives no creedance to such complaints until he reviews the record of the case. He tells John that from the documents he holds, that John “hast investigated almost nothing pertaining to the questions named and assigned” to him. He overrules the lower proceedings. Here’s the catch though he sends a punishment down to John. How many appellate judges would dig on sending punishments down to lower courts.

VII,VIII, IX: He follows up on the previous letter and declares a retrial with a new judge.

XXXVIII: He requests that Libertinus investigate a Jew named Nasas, who has been enslaving Christians. He requests that after the investigation, if this is true that those slaves be freed “according to the injunctions of the laws.”

LVI: This letter addresses a dispute that is ongoing throughout the letters: that of the Pallium. In this letter we find a nice example of the use of precedent wherein Gregory seeks to determine what is just through the examination of historical customs.

LXV: He addresses a Roman law that keeps people in the public administration from holding ecclesiastical office. Old timey Church and State separation. Gregory agress with the implementation of the law. He however with certain provisions of it that keep people from becoming monks, as he thinks that their accounts are easily rendered and their office much different from that of a priest.

LXVI: He follows up on the previous letter to have Theodorus the Physician to lobby the Emperor to change the law.

IX: Gregory counsels Januarius on the proper way to administer his jurisdiction. This seems like an executive order of sorts.

XXI: Again we learn that Jews are to be forbidden from holding Christian slaves.

XXVI: He addresses here a situation in which priest are being “oppressed by lay judges.”

XVIII: This letter and numerous others following it begin Gregory’ account of the dispute of the Universal Bishop in which the Bishop of Constantinople declared himself the head of the Church. Gregory notes that this honor was actually extended to the Roman Bishop (the Pope) by the council of Chalcedon, but was declined, so as to keep the three bishops in equal power. These statements are still used today by many evangelical protestants to dispute the Popes standing. It is fascinating reading if you are into that sort of thing.

XX: Universal Bishop.

XXI: Universal Bishop.

XXXVI: Gregory in this letter discusses issues relating to Agiluph, King of the Lombards and his unwillingness to conclude a general peace. Agiluph will not consent to arbitration unless all parties are present, because “many acts of violence were committed in his regions during the time of peace.” Agiluph has stated that he will make satisfaction for any wrongs committed by his side.

XL: Gregory writes to Mauricius Agustus. Apparently the peace made with the Lombards was violated and the Emperor accuses Gregory of some sort of crime. He uses ecclesiastical history to argue his case citing a case wherein bills of accusations had been presented to the Prince of Constantinople against some bishops. The Prince burned the bills stating that it was not fit for the temporal power to judge the bishops.

XLI: Gregory is writing about pagans in Sardinia who are sacrificing to idols. He comments that many of them bribe judges to get a license to do this.

XLIII: Universal Bishop.

LIII: Gregory discusses the simonical heresy and the unlawfulness of ordaining ministers in exchange for bribes.

LIV-LV: He grants “according to ancient custom” Virgilius, Bishop of Arelate, “vicariate jurisdiction” in the dominion of King Childebert. He will rule on all cases in the region.

I: Gregory settles a dispute over a will and a bequest to the Church.

XII: Gregory executes a will.In this he frees to slaves:”it is a salutatory deed if men whom nature originally produced free, and whom the law of the nations has subjected to the yoke of slavery, be restored by the benefit of manumission to the liberty in which they were born.” One of these slaves recieves property with the annexed “law and condition” that if the recipient dies without legitimate children (those “born in lawful wedlock”) the property will revert to the Holy Roman Church. Gregory sums up with a nice little legal quote: “For the rule of justice and reason suggests that one who desires his own orders to be observed by his successors should undoubtedly keep the will and ordinances of his predecessor.

XV: He rules on an appeal over heresy finding that the judges were motivated only by injuring the accused instea of “justly.”

XVI: Writing about the case in the previous letter, Gregory discusses the evidence that was presented at trial that the judges ignored.

XXIV: Gregory asserts Papal jurisdiction in a case between Marinianus’ Church and the Abbot Claudius after “people have cried out that it is contrary to the laws and canons that the cause” be decided in Rome. He states that the interests of the Abbot are not served by having the proceedings there.

LXVI: Gregory is addressing a case of heresy and he makes an observation about a defense: “. . . things done under compulsion by no means fall under the censure of the canons, and they are rightly accounted to be of no weight (since he himself invalidates them who compels what is unjust to be confessed and done) . . .”

XXXVIII: Slavery law: “The ordinances both of the sacred canons and of the laws allow the utensils of the Church to be sold for the redemption of captives.”

XLII: Gregory notes a canon law that forbids a church to be without a bishop for more than three months.

III: Gregory has rcieved a complaint from a son that his father bequethed some things to a parish that did not belong to the father. Gregory notes the “secular law” that the son must pay for these items to redeem them. He tells Donus, Bishop of Messana who recieved the items, that it should be decided by “the law of God and not the world.”

V: Gregory transmits to his bishops a Roman law forbidding people with public liabilities from taking any ecclesiastical office or becoming a monk.

VI: Gregory seeks an extradition of sorts of a criminal who has taken refuge in another church.

XX: Gregory request a “legal” inquiry into the status of a woman.

XXI: Gregory requests an inquiry into a freed Chritsian slave whom others are trying to enslave again.

Gregory the Great


Lukefahr, Oscar. “We Believe…”:A Survey of the Catholic Faith. (1995)

April 30, 2007

We Believe…: A Survey of the Catholic Faith : Revised and Cross-Referenced to the Catechism of the Catholic Church

“Laws are necessary and good, but Christ’s followers must constantly strive to view them according to their mind and heart.”

Oscar Lukefahr, in “We Believe…”, attempts to give a straightfoward and short introduction to Catholicism. Its main audience is intended to be those that are new to the faith, but it could probably be handy for tried and true Catholics as well (not being Catholic myself I’m only assuming). His text covers many parts of the faith and cross references to the Catechism of the Catholic Church making it very easy to reference back to the source of the official doctrine. It is an easy read and is very accessible to the average unitiated reader.

There are three different types of references to law that can be found in the book. The first is references to occurences of law within the Bible. The second is to Canon Law itself. Finally, there are references to the role of the Catholic Church in the political state.

His references to law in the Bible aren’t by any means a full treatment of the subject. Instead, they are incidental to the story that Lukefahr is telling. He begins with a brief history of the nation of Israel. He notes that in 63 BC the Romans conquered Jerusalem and made Palestine a vassal state. This event created, of course, conflicting regimes in the area: Roman Law versus Jewish Law. He states that throughout its long history “the Israelite nation had little political or military influence” (barring a brief period under David). He then goes on to discuss the formation of the Bible itself as the telling of this history, noting that among the different items collected into the document are laws, which is what the Jewish priests were trained in.

After his discussion of Jewish history he moves into the life of Christ (and the beginnings of Christian history). In describing the political climate, he relates the different sects of Jews that were active at the time. Of particular note are the Sadducees and the Pharisees both of whom strictly followed the written law that could be found in the Torah. Also, he mentions the Zealots, who believed the Messiah would be a military leader and a political leader.

Christ’s tensions with these groups came partly, according to Lukefahr, from his resistance to their observance of “thousands of detailed regulations.” The Sadducees feared that he would cause a “civil disturbance,” whereas the Pharisees accused him of breaking the law. This, of course, leads to one of the most monumental moments in history and an interesting bit of conflict of laws. The Pharisees tried Christ in a secret “unfair trial” and sentenced him to death. They then took him to Pontius Pilate in order that he might be condemned under Roman Law also. Lukefahr claims this is because they didn’t want to bear the blame and because they wanted Christ “to undergo the humiliation of a Roman crucifixion.” They accused him of treason, but Pilate found him innocent. As we all know, though, the Pharisees were persistent and eventually forced Pilate to sanction the execution.

After the death of Christ, the apostles go on telling his story. This is when Canon law begins to develop. One example that can be found in Lukefahr’s work is that many Christians of Jewish background were upset that Paul and Barnabas did not require new converts to follow Jewish Law. This view was rejected by a council in Jerusalem in 49 AD. This council reflects one of the early law making bodies in the church. Councils like this dealt with theological and rule making matters (and still do today). Lukefahr takes note that some people believe that “Christ never intended a Church with its leaders, rituals, laws, and potential for scandal and sin.” he makes the argument though that the Church was intended to have standards of membership and portrays Christ as a rule giver. He states that the church is a society and that “no society can exist without” rules and leaders.

As to specific rules of Canon law, his references are sparse. Propbaly the best place to find them are in his description of the sacrement of Marriage. He discusses specifically the capacity to be wed noting that a marriage can be invalidated by the Church if it violates either Church law or civil law. He also discusses the process for a annulments that are given by a diocesan tribunal. The anullment does not have civil effects and does not affect the status of children. He then discusses the Pauline Priviledge in which the Church amay disolve the marriage of unbaptized persons (and the similar Petrine Priviledge between an unbaptized and a baptized). Finally, he addresses divorce. The Catholic Church does not view civil divorce as ending a marriage, an annulment must be granted. Lukefahr does note though that the civil divorce does not exclude a Catholic from practice of the faith and that the civil divorce may be a necessity in order to protect people from abuse.

He also addresses the Ten Commandments. He argues that if the commandments are kept by all then we can truly be free. For example. if nobody steals then we are free from having to lock up out things, etc. It is an interesting argument, but not terribley well developed.

When it comes to the Church and its functions in the State, Lukefahr begins with the Decree of Milan issued by Constantine in 313 which granted religious toleration to Christians. While he notes that Constantine’s effots ended many problems, he is wary that this “opened a door to church-state entanglements that would create new problems for the Church.” This door is taken advantage of as the Roman Empire begins to collapse allowing the Church to “bec[o]me a civilizing force,” and again when Charlemagne was crowned Holy Roman Emperor in 800 and “renewed church-state ties, laying the groundwork for corruption and decay.” This corruption persisted until, he claims, the Council of Trent, after which there has been a steady movement “away from secular entanglements.” He even goes so far as to mention the US Constitution as a “new understanding” of the church state relationship.

This book functions as a handy introduction to the Catholic faith and includes both Theology and a little bit of law. While it is targeted more towards those actively trying to enter the faith, it could prove handy to someone needing an introduction to Catholic teachings.

Oscar Lukefahr

Mortimer, John. Rumpole and the Younger Generation (1978)

April 18, 2007

“. . . you will discover during the course of these memoirs that, although I only feel truly alive and happy in law courts, I have a singular distaste for the law.”

Rumpole and the Younger Generation is the first of Sir John Mortimer’s short story’s chronicling the illustrious career of one Horace Rumpole, barrister (while it is a short story one can find it in book form published by Penguin, which is how I happened to read it).

Mr. Rumpole is a barrister that spends his days fighting for Justice in the Old Bailey (England’s Criminal Court for those of you not in the know). While the whole of the story deals with the law in one way or the other, I will only address two of the substantive themes that occur within the story: the characterization of Rumpole as the lawyer’s lawyer and Rumpole’s ideas about criminal law as being at the heart of the legal system.

Mortimer has created the quintessential English barrister in Rumpole. In and out of court he is quick and witty, he can qoute lines of Wordsworth to fit most situations, and he very adept in court as well. At the same time though he can be reflective and philosophical. In short, Rumpole is the type of lawyer that other lawyer’s like to read about; he is a lawyer’s lawyer. Let’s face it, we lawyer’s revel in the idea of making a judge look like a fool in court and getting away with it. We love the idea of solving the case at the last minute with innovative surprise evidence. And despite our dubious reputation we like to think that we really do seek justice when we go to court. Rumpole embodies one of the great lawyer archetypes, which I’ll dub the gentleman lawyer. He doesn’t have the perfect record or the cut throat persona that we often see displayed in other lawyer characters, what he has though is charisma and charm. The way in which he carries himself allows him to seem nonthreatening, but this is his greatest weapon in the courtroom. He is a lawyer that loves the court room, yet retains human dimensions outside the courtroom, too. To sum up he is more than a good lawyer; Rumpole is a good man.

The second theme that I will deal with revolves around Rumpoles ideas about criminal law. My father once told me that the most fun he ever had while practicing law was when he was a criminal lawyer. This idea is somewhat reflected in Rumpole’s statement that a “person who is tired of crime . . . is tired of life.” In the story the head of Rumpole’s chambers is retring and it is time to choose a new head of chambers. While Rumpole is the most senior barrister, he also has an entirely criminal practice, and there are some in the chambers that feel as though this is the wrong direction to be taking. Thus Rumpole must defend his devotion to criminal law when it is asserted by his mentor (and the out going head of chambers) that “too much criminal work does rather lower the standing of a chambers.” When one lawyer states that the chambers should move more towards tax Rumpole sarcastically responds “compared to the wonderful world of tax, crime is totally trivial.” This conflict represents a real conflict in law, and one that is troubling. There is not money in criminal law, glory maybe, but no money. Yet criminal law may be the most important type of law there is. It is through criminal proceeding that the true measure of justice is found. If we can depend on the criminal courts to be just for others then they are likely to be just for ourselves as well. When, though, we are in an advesarial system of law and criminals are routinely represented by over worked public defenders, second rate lawyers, or even law students the justice in the system can be easily challenged. Quite simply, we need more Rumpole’s in criminal law, but we have no way of luring them there (as criminals are commonly not well off).

Rumpole and the Younger Generation (Penguin 60s)
Sir John Mortimer

Wallace, Irving; Amy Wallace; David Wallechinsky; Sylvia Wallace – The Secret Sex Lives of Famous People (1993)

March 6, 2007

“But sex is part of us all. As the late Justice William O. Douglas of the US Supreme Court put it, ‘The idea of using censors to bar thoughts of sex is dangerous. A person without sex thoughts is abnormal.'”

The Secret Sex Lives of Famous People consists of a series of short biographical sketches about actors, heads of state, authors, sports stars, and various other people situated in the public eye. Each sketch, of course, seeks to shed light upon the more intimate details of that person’s sexual experience. The book contains numerous fascinating tidbits, but needs editing both in that it is too long (491 pages) and that it is packed full of mistakes (e.g. to whom it may concern: William Faulkner is not from Missouri . . . I swear pearls before swine).

The book is actually ripe with legal tidbits (it is too ripe with them for me to even list them all) including everything from divorce suits to laws about sex to bizarre tort claims. However, a theme can be found in the pages even if it is unintended by the authors. The book is organized alphabetically instead of chronologically so tracing the theme throughout the pages is like a puzzle, but if put together correctly it paints a picture of how laws dealing with sex (mainly through family law) have evolved from early church rule in the matter to state adoption and legislation. Furthermore, it shows how the state (up until recently I would argue) has legitimized the traditional sex roles that came from the origins of family law within the church. The state has drawn those traditional mores foward into modern society, but not just in the realm of family law. For instance obscenity laws often serve to enforce societies views on sexual morality instead of actually outlawing items that are so offensive that they are dangerous. A prime example of this is one of the prongs in the US Supreme Courts formulation of what obscenity is for First Amendment purposes: whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest. By using “contemporary community standards” the court allows a community to decide on the level of deviancy from norms (it also allows for things to be constitutional in some places and not others, which is to say the least problematic).

This theme of legitimation by the state in the book is counter balanced by a steady theme of subversion. Subversion of sexual norms were traced throughout history from Popes to heads of state to political activists. Interestingly, this subversion is unlike most political activism, which is often explicit and pronounced. Sexual subversion is usually private due to the nature of the relations, and it only takes on an activist role once it has been exposed to the scandal sheets. Of course this isn’t the rule, both Rasputin and Marquis de Sade (who both have chapters in the book) were quite outspoken subversives for their own ideas about sex. However, it has only been very recent that there have been outspoken and widespread sexual movements that show some sort of solidarity. These movements still suffer from the norms that the state seeks to enforce through of family law, obscenity laws, and other avenues, thus many who would speak do not due to the stigmatizing effects that this sort of legitimation entails.

This is not to say that all restrictions on sexual activity should be repealed, but instead for us to question the true motives of restrictions and whether they serve a purpose that goes further than enforcing the majority’s moral code.

Below I have listed some of the more memorable law related moments from the book as well as a list of Lawyers, Law Students, and Judges that had their own chapters:

Law Moments

  • Father Divine was arrested in Georgia and booked as “John Doe alias God.” He later proved his divinity when a New York Judge who had sentenced him to 6 months in Jail died of a heart attack.
  • Napolean refused to allow punitive legislation against homosexuality.
  • Farouk I painted all of his cars red and then made it illegal for any other cars to be that color. This way he could speed without police interference.
  • Errol Flynn was involved in a saucy little statutory rape suit. He was aquitted.
  • When 10-years-old, Billie Holiday was sentenced to a Catholic Reform school, because she was raped by her neighbor the much, much older Mr. Dick.
  • J. Edgar Hoover said, “I regret to say that we of the FBI are powerless to act in cases of oral-genital intimacy, unless it has in some way obstructed interstate commerce.”
  • Marie Stopes testified at her divorce trial that her husband “was never effectively rigid.”
  • Oscar Wilde pressed charges against a Marquis who accused him of homosexual activity. The Marquis then showed that he could prove it. Wilde dropped the charges and had to flee the country to escape prosecution.

Lawyers, Law Students, and Judges

  • Giovanni Jacopo Cassanova
  • Charles Dickens
  • Honore Balzac
  • James Boswell
  • Mahatma Gandhi
  • William Gladstone
  • Johann Wolfgang von Goethe
  • Aly Khan
  • Martin Luther
  • Guy de Maupassant
  • Marquis de Sade

The Secret Sex Lives of Famous People
Irving Wallace
Amy Wallace
David Wallechinsky

Dworkin, Ronald – Freedom’s Law: Moral Readings of the American Constitution (1996)

February 2, 2007

“The moral reading proposes that we all – Judges, lawyers, citizens – interpret and apply these abstract clauses on the understanding that they invoke moral principles about political decency and justice.”

Ronald Dworkin presents, in this volume, a series of essays that he uses to highlight what he calls a “moral reading” of the constitution. This moral reading requires the jurist (or whoever else might be working with the document) to interpret the abstract terms of the Bill of Rights “on the understanding that they invoke moral principles about political decency and justice.” He sets this type of reading up as the opposite of an original intent type reading, the abolition of which seems to be his project. My initial and primary problem with his ideas is that he holds that there is no middle ground between the two readings, and bases it on the fact that no one has yet really defined any sort of reading. I find this to be a bit misleading. Intent is important when we look at the law, and this is why “legislative intent” is so often examined when courts must rule on statutes. The Constitution is a historical document and the intent of the framers is quite important when interpreting it, but that should not be the only factor as the document has grown and must grow to deal with new legal quandaries that the framers would not have or could not have had in mind. Dworkin ignores any sort of balancing test that would allow for a mixing of different views to bring about justice.

Dworkin’s project seems less like an attempt to explain constitutional ideas and more like an assault on conservatives and conservative ideals. In my opinion this assault puts his own credibility into question. His disdain for not just conservative ideas, but also for specific figures becomes overpowering by the end of the book. In the final chapter he quotes, with admiration, Judge Learned Hand, who said, “The spirit of liberty is the spirit which is not to sure that it is right.” Dworkin suffers from being too sure that he is right. I am no constitutional lawyer, but I felt that too often he attempted to shrug off doctrines that he did not agree with as obviously wrong based on the fact that they were conservative in nature. I will try and make this more apparent below in the short discussions of each of his three sections of the book: I. Life, Death, and Race; II. Speech, Conscience, and Sex; and III. Judges.

In the first section of the book Dworkin reveals to the reader the first of his two obsessions in the book: abortion. Of the six chapters the first four cover it directly, the fifth deals with tangentially, and the sixth somehow manages to deal with both abortion and affirmative action at the same time (and abortion is probably mentioned in every other essay in the book). As a result Dworkin seems to repeat himself quite a bit by the end of this section (granted these are collected essays so it has more to do with bad editing than bad writing). Dworkin’s premise is that if one applies his moral reading to the constitution then one will come to the conclusion that Roe v. Wade is (and I remember this word being used somewhere) “obviously” right and that fetuses aren’t Constitutional Persons and thus a state has no right to protect them until the third trimester. I had a few qualms about his argument. First, on a technical note it seems that Dworkin really likes to cite himself as a reference, and I find that inherently problematic. Second, I feel as though Dworkin doesn’t engage with the language of Roe v. Wade at all. Instead, I found that he accepts the result of the ruling, but attempts to write in his own reasoning instead of that which the court used. In other words he justifies it in his own terms. Third, I felt like he did a little dance around the crux of what makes abortion and Roe not just controversial, but also a very difficult subject matter that readily leads to different conclusions for different people. He chooses to frame the question around whether a fetus is a “constitutional person” and twice compares fetuses to corporations (the analogy being that they are a being or a person, but that their rights can’t trump fundamental rights of constitutional persons i.e. potential mothers). He seems to skip, in my opinion, the idea that if we deem a fetus a human being it might very well have rights and that there are reasonable arguments for doing so. Instead he hides the ball by using the term “intrinsic value in human life” and making a misplaced value judgment that a fetus deserves recognition as a person with rights when it is recognizable, or has brain functions, or is viable. I don’t fault him for his opinion on Roe, but I never understood how another person applying the same moral test, might not come to the opposite conclusion based on moral principles? His obvious outcome is tied up in ones personal philosophy, which (and this is my final problem) leads him to then makes an ill-founded establishment clause argument. Essentially: if most Christians believe that abortion is wrong, then banning it violates the first amendment. Most Christians were against alcohol during prohibition (lets assume), but the banning of alcohol was proper function of the commerce clause (as interpreted), thus just because a group supported it it doesn’t follow that it violates the establishment clause. It doesn’t follow that if a state decides that a fetus is human being and has a right to life that this is inherently based on religion because Christians support it. This is not to discount religious involvement in the political arena, certainly any such law would be supported by religious groups, but “support for” is different from religiously based. It really is a question of personal philosophy, and it is not a simple as Dworkin wants one to believe.

The second section on the book, Speech, Conscience, and Sex, is where Dworkin shines in the volume. He, in this section, does engage with the Supreme Courts rulings on free speech in a way that not only explicates those rulings, but also makes his views clear on them. He begins with a discussion of New York Times v. Sullivan in light of two major trials involving slander and military generals, and follows it up with an essay as to why that sort of freedom is essential to our democracy. He ends the section with a discussion of Academic Freedom, which I think manages to effectively deal with numerous misconceptions that people have about the academic freedom and to make a valuable argument as to why a state should not meddle with researchers in its colleges. But Dworkin really shines in his essay “McKinnon’s Words,” which is an assault on Katharine McKinnon’s book Only Words and her anti-pornography statutes. McKinnon is a well known radical feminist whose project seeks to bring equality through the law. She started out as a Marxist and so her views often embrace very radical alterations in legal structures. In her book, she argues that pornography should be banned because it violates women’s fourteenth amendment rights to “equal protection” by subjecting them to prejudice and objectification which alienates them from the political process. Her argument runs that equal protection should not be sacrificed to the freedom of speech. She also managed to pass two anti pornography statutes one in the US and one in Canada. The one in the US was struck down as unconstitutional, the one in Canada (due to her definition of pornography – which is flawed) resulted in numerous items being banned including a book by critic bell hooks (hows that for irony). Dworkin sees these ideas as fundamentally flawed and I think rightfully so. He argues that it is the value that we place on freedom of speech in this country that allows for the open political process to work, and that for it to work some dubious things must be allowed to be communicated (including pornography with no political value). If the government can ban these items the slippery slope is open and we all suffer due to exclusion from the political process. He also prints his reply to the letter she published as a response to his article when it was originally published. He states that she called his article “ignorant, appalling, shocking, rock-throwing junk” and compares him to “kept writers in pornography magazines.” Now I haven’t read her actual letter, but if Dworkin reports correctly (I think he probably does) then it show McKinnon’s inability to take part in the actual conversation; instead she opts for the fireworks.

The final section of Dworkin’s book is entitled Judges and this is where you find his true colors. The first three chapters deal with the nomination and defeat of Robert Bork by president Regean to the Supreme Court. Bork is Dworkin’s second obsession and is mentioned in most, if not every essay, in the book and mentioned with great disdain at that. Dworkin frames this nomination as an important moment in the history of the court, but I don’t think it lived up to Dworkin’s expectations. Instead, it seems as though Dworkin has some sort of petty vendetta against Bork, and maybe more disturbingly his constitutional theory really begins to shine through as one that only accepts liberal views as valid. He seems shocked that Bork’s nomination was politicized by Regean, but openly seems to endorse liberals voting against conservative candidates based on their conservative views. Then he argues that Congress should vote on the virtue of the candidates constitutional philosophy, but hints that anything but a liberal philosophy should be voted down. This is expanded with his discussion in the next two chapters which cover the Clarence Thomas hearings. He is dismayed that the administration is openly nominating candidates that it hopes would overturn Roe v. Wade. He skips what a lot of people skip when discussing stare decisis: What if the tables were turned and Roe went the other way? Would he be as outraged if a liberal administration decided to appoint justices that would overturn that decision? Probably not because he would think that the decision was inherently wrong, but he won’t extend that sort argument to a conservative point of view (because he refuses to accept any sort of conservative critique as valid). He also discusses the constitutional philosophies of these two candidates as if “no constitutional lawyer” would buy into them, but it should read no “liberal constitutional lawyer.” He so sure that he is right that he fails to see that many of the doctrines are currently working to shape our constitution from the bench, and are by virtue of the fact they are quite relevant.

One final point, something that struck me as strange. He mentions that the “black community” supported Thomas and that after he got to the court some tried to justify their support with the idea that if Thomas didn’t make it then it would just be a white conservative (thus better to have a black conservative). Dworkin argues that it is “more insulting” to blacks to have a black conservative on the bench. I wonder if Dworkin thinks Thomas is not a “credit to his race.” Why shouldn’t Thomas be conservative and black, and more importantly, Dworkin, why should that insult black people in a country that prides itself in a multiplicity of views.

To sum up, Dworkin makes some very interesting arguments and is an important jurist, but he is so lost in his political agenda that the law gets left behind so he can pursue his project against conservatism.

Ronald Dworkin