Various people have been complaining that I am not updating my blog.
Well, life has been very complicated lately. I am to take Marsha Marie Olsen in marriage on December 27, 2003, somewhere near the birthplace of aviation--and not too far from my own birthplace, too! In preparation for this, I have been busy making multiple trips across the state in various directions, comforting my wife-elect as she recovers from mononucleosis and finishes the first semester of graduate school.
We're going to honeymoon in Cincinnati and Paris. We're really looking forward to it. I'm looking forward to showing Marsha the Louvre and Montmartre. Marsha is looking forward to having me all to herself for a whole week.
Poi ch'innalzai un poco più le ciglia,
vidi 'l maestro di color che sanno
seder tra filosofica famiglia.
Tutti lo miran, tutti onor li fanno:
quivi vid' ïo Socrate e Platone,
che 'nnanzi a li altri più presso li stanno;
Democrito che 'l mondo a caso pone,
Dïogenès, Anassagora e Tale,
Empedoclès, Eraclito e Zenone;
e vidi il buono accoglitor del quale,
Dïascoride dico; e vidi Orfeo,
Tulïo e Lino e Seneca morale;
Euclide geomètra e Tolomeo,
Ipocràte, Avicenna e Galïeno,
Averois, che 'l gran comento feo.
The following is a paper that I wrote in 1999. I need to get back into this stuff!
Aeternitas Mundi and the Independence of Philosophy
In the early part of the second millenium, contact with Islamic civilization in the Balkans, in Spain, and on the seaways of the Mediterranean reintroduced Christian thinkers to a long-forgotten Aristotle, and to the living intellectual bargain stuck between philosophy and Islamic theology. Compounding new chunks of the Aristotelian corpus to his logic, western Europeans of the thirteenth century faced an exotic philosophical system of enormous depth and complexity. Aristotelianism represented, not some philosophical-cum-mystical movement, such as the heresies of the Patristic church and the late Middle Ages, but an explanation, complete unto itself, of the world in completely material terms. For the first time since its clash with Stoicism and neo-Platonism many centuries earlier, Christian theology faced an independent philosophical system capable of supporting a forest of theories any many hedges of proofs on its own turf. Within this episode, a flashpoint of controversy was the doctrine of creation: the question of the eternity of the world broached again as major metaphysical hurdle for Aristotelianism in any form. Here, we will consider the reactions of Thomas Aquinas, Siger of Brabant, and Boethius of Dacia to this question.
The Condemnation of Aristotelianism
At the University of Paris, then the intellectual capital of Christendom, scholastic philosophers of the thirteenth century responding to the challenge of Aristotle fell into three distinct schools. The first of these, located practically in the person of Thomas Aquinas, sought to accommodate Aristotelian ethics, epistemology, and metaphysics to the imperatives of Christian revelation, considering the Gospel, not as the abrogation, but as the fulfillment of accurate but essentially secular philosophy. The second of these, the so-called “Latin Averroists represented chiefly by Siger of Brabant and also by Boethius of Dacia, are often thought to have accepted philosophical conclusions, as a so-called “double-truth,” independently of apparently contradicting claims by the Bible and its interpreters. A third school arrived in the form of neo-Augustinian movement anticipated by Bonaventure and led by John Pecham and Henry of Ghent. (1)
Local synods meeting in Paris condemned Aristotelianism in 1270 and 1277. The papacy had already forbade the teaching of the metaphysical works of Aristotle in 1231. Over the generation, this proscription would fall by the wayside. On 10 December 1270, Stephen Tempier, Bishop of Paris, condemned thirteen errors, among them four clearly associated with the teaching of Siger: that the intellect of all men is numerically one and the same; that the world is eternal; that there never was a first man; that after death the separated soul does not suffer from corporeal fire. (2) Over the next seven years, opposition to Aristotelian philosophy smoldered. In the interval, Thomas Aquinas went to his reward (1274) and Siger of Brabant found his way into retirement (1276). On 7 March 1999, in response to a papal request for investigation, Tempier, acting upon the advice of a committee of theologians including Henry of Ghent, condemned 219 heretical propositions.
Heading this list were propositions “that there is no more excellent state than to study philosophy” and “that the only wise men in the world are philosophers." (3) Anxious to forestall the imperialism of reason, Tempier denied “that there is no rationally disputable question that the philosophers ought not to dispute and determine, because reasons are derived from things.” (4) For “philosophy under one or another of its parts to consider all things” went hand in hand with the equally arrogant refusals “not to be content with authority to have any certitude in any question” and “not [to] hold anything unless it is self-evident or can be manifested from self-evident principles.” (5) In the same vein, the sufficiency of reason is denied in the proposition no. 8: “That our intellect by its own natural power may can obtain to a knowledge of the first cause." (6)
On the heels of a prologue directed against the autonomy of philosophy, poured forth a cascade of assorted propositions, often redundant and occasionally contradictory, as may be expected in the output of a committee. Many idiosyncrasies in the list seem to have been occasioned by outcome of attempts by M.A.’s at the Paris to debate theology. (7) A number of the condemnations (e.g., nos. 34, 38, 39, 40) cast aspersion upon the separate existence of the soul or the intelligent principles, denying their co-temporal existence with God. Several propositions are directed not only at the radical Aristotelians, but even at Aquinas, denying matter as the mode through which men are individuated (nos. 42, 43). Prominent within those condemned were theses touching the eternity of the world. The world is not able to exist in the past because it is able to exist for the future (no. 84, cf. no. 87). The presence of newness in effects does not require corresponding newness in causes (no. 85). Related to this is the denial of the eternity both of the agent and possible intellects (no. 129), and of the generation of man (no. 138). (8)
On the point of creation, the condemnations reveal conservative theologians intent upon preserving power and attributes of God in traditional Augustinian terms. God cannot be reduced to a prime mover distinct from the rest of the universe only by his efficient priority (cf. nos. 24, 25, 26). God, for Tempier and company, clearly exists as a being metaphysically discontinuous from and even incomprehensible to his creation. However, any purely secular understanding of the world is insufficient; faith is not accessory but necessary. Witness proposition no. 216. “That a philosopher must not concede the resurrection to come, because it cannot be investigated by reason.—This is erroneous because even a philosopher must bring his mind into captivity to the obedience of Christ." (9)
The local historical impetus for the Condemnations of 1270 and 1277 are located in points given a century earlier by Averroes (1126-1198) in his Decisive Treatise. Discussing the differences of agreement between the ancients and his contemporary fellow Muslims, Averroes asserts that they agree that there are three classes of beings. The first, “the status of bodies whose generation is apprehended by sense,” is that of being which is brought into existence by other than itself and by something . . . and it is preceded in time." (10) The second class is God, “the being which is not made from or by anything and is not preceded in time." (11) To Averroes, a third class of being exists about which all confusion centers, “that which is not made from anything and which is not preceded by time, but which is brought into existence by something." (12) To Averroes, this is simply the world. Noting that both theologians and philosophers agree on the future infinite extension of time, Averroes narrows their disagreement to the issue of the past finitude or infinitude of its past existence.
To the Arab, this difference is not especially great, certainly not enough to brand the philosophers’ position “irreligious.” Not only is he unable to secure a proof-text for the divine existence apart from any other book, but he argues that the Koran apparently posits further modes of being not only after this present time, but also before. By this tactic, he is able to reduce both theologians and philosophers to the “level playing field” of allegorizing the apparent meaning of revelation. For Averroes, the theological allegory is deficient precisely because it lacks the consensus held by the philosophers. (13)
The question of the eternity of the world became a major issue in Paris with the reception of Aristotle in the following century. Siger of Brabant, in his early 1270s treatise De Aeternitate Mundi, articulates a relatively dry, uneditorialized case for the eternity of the world, substantially derived from Averroes. Metaphilosophically, Siger’s work represents a rising new genre in medieval thought: simply assuming the validity of its Aristotelian assumptions, the opusculum works out steady analysis without even bothering to seek any sort of concordia discordantium. (14) Siger makes no real attempt in his work to reconcile large-scale objections to his thesis; he merely demonstrates how it might be supported against limited counter-arguments. At the onset, he proposes two basic questions to be addressed. “The first question is whether the human species, and in general the species of all individuals began to exist only by way of the propagation of generable and corruptible things when it had no previous existence whatsoever." (15) The basic point here is that each species has its being and receives causation only as individuals. The second question shifts ground to reapproach the same issue from the standpoint of universals: “universals, just as they do not have existence in singulars, neither are so caused." (16) Again, Siger is essentially concerned to understand how a individual thing can begin to be.
To evaluate these questions, he proceeds to ask three more basic questions: how the human species is caused, how universals exist in singulars, and whether potentiality may proceed act in duration. (17) On the first point, he concludes that species may not be caused except by accidental generation. Thus, for Siger, species is not essentially generated.
It is not to be thought of as eternal and caused as if it existed abstracted from individuals. Nor . . . . in the sense that it exists in an eternally caused individual . . . . but rather because in the individuals of the human species one is generated before the other eternally, and the species has to be through and individual’s existing and being caused. (18)
At this point, Siger uses the analogy of Aristotle’s concept of time from Physics 4.13: Whatever is finite in quantity, while infinite in number, must be infinite. (19)
On the second question, he responds, following Aristotle, that universals exist in the mind. For Siger, the active intellect and the phantasm formed precede the act of the intelligible; accordingly, the universal does not get its universality from the nature causing the act of understanding. (20) In dealing with the third question, Siger addresses “whether act precedes potentiality in time or potentiality the act.” (21) Following Aristotle in Metaphysics 9.8, he argues “that in a being which is the same in number proceeding from potency to act, potency proceeds act; but that, nevertheless, before the being in potency there is another of the same species in act, educing from it potency to act.” (22) Thus, Siger winds up affirming that act thus effectively precedes potency, as all beings go into actuality from potentiality through an agent existing in act. “Hence it is that in any given being in potentiality to some act, the act of the species in a certain way, although not entirely for the same reason, precedes that potentiality in time; not however, in any given being in act does potentiality from which it proceeds to act, proceed." (23) This would prove the eternity of the world, for “the first mover leading into act all being in potentiality does not precede in time the being in potentiality, since the being in potentiality is regarded in the rank of prime matter. For, just as God always exists, according to Aristotle, so also does the potential man, since he is regarded as in prime matter." (24) What Siger seems to be saying this that the world must consist of parts in eternal act and potency, the former acting upon the latter and the latter allowing the former to act.
Boukowksi suggest that Siger, in addressing the causation of the world here in De Aeternitate Mundi and elsewhere in his commentaries on Aristotle, is merely presenting probably, naturalistic arguments based on logical extrapolation from imperfect philosophers. According to this interpretation, he dispassionately expounds the implications of an unmoved first cause as envisioned by Aristotle and Averroes; while implicitly accepting the rappochment of philosophy and Law made explict in Boethius of Dacia. Within Siger’s philosophical account, then, the first cause requires an eternal effect, and thus generates the world eternally. The natural explanation is adequate, on its own level of knowledge; faith is left free to affirm something quite separate, on another level. (25) Here again, Siger plays the proto-Renaissance “humanist,” more interested in the thought than whether it counts.
Probably a year after Siger’s writing, Thomas Aquinas treated the problem in a treatise of his own, his own De Aeternitate Mundi. Whereas Siger’s treatise is short on “philosophy of religion” commentary, Aquinas’ libellum exudes it. For Aquinas, the eternity of the world problem represented a potential peril ready to taint the critical, adaptive use of Aristotle with the taint of impiety—a fear later given form in the Condemnations of 1277. From the onset of his opusculum, he seeks clarify that it is one thing to investigate the mode of creative causality and, in the context, to question whether the world could be coeternal with its cause; and quite another thing to question divine causality categorically by asserting the existence of an uncaused, eternal, autonomous universe. This possibility is obvious to Aquinas simply on the basis of the divine attributes: “all parties are agreed that God could make something that always existed, because of the fact that his power is infinite.” (26) Aquinas deems it improbable that God should cause the world eternally, but demands the investigation of their logical compatibility rather than an outright dismissal. “Since God’s omnipotence surpasses all understanding and power, anyone who asserts that something which in intelligible among creatures cannot be made by God, openly disparages God’s omnipotence." (27) At bottom, the Angelic Doctor seems to be arguing for free inquiry, fides quarens intellectum.
In the first place, Aquinas finds that no logical contradiction forbids an agent not to precede an effect in duration. Causes acting instantaneously, such as fire or motion demonstrate this. Furthermore, only the will seems able to slow the causal agent, so that it need precede its effect in duration. Secondarily, he seeks to explore whether further contradiction is involved for a created thing to have never been without existence. Citing Anselm in Monologium 8, wherein that doctor uses the example of the man saddened without cause as being saddened by nothing, he immediately finds that “no order of duration is establish between what was made and nothing, as though what is made would first have to be nothing, and afterwards have to something.” (28) Continuing further, Aquinas drives a distinction between order of duration and order of nature, suggesting that the relation between uncreating and created being is analogous to that between universal and particulars. “For our position is not that, if the creature had always existed, it was nothing at some time. We maintain that its nature is such that it would be nothing if it were left to itself.” (30) A good example of this is the sun, which without duration makes the air luminous. A further example, borrowed from De Civitate Dei 10.31, is the impression made by a foot planted eternally in dust. Having raised Augustine, Thomas then proceeds to cite several esteemed philosophers, including Hugh of St. Victor and Boethius ipse: the created world, while never without existence, does not exist in the same sense of an eternal present as God, being mutable.
While Aquinas fails to find the philosophical doctrine of the eternity of the world on purely naturalistic grounds, on theological grounds, he finds no obligation to believe in an eternally existing world. God’s will being the cause of all things, “God is under no compulsion to will anything except himself. All we can say is the world is eternal if God wills it to be so, since the existence of the world depends upon God’s will as a cause.” (31) However, revelation demands that we deny the eternity of the world: “I hold by faith alone that the world has not existed forever; this truth cannot be proven demonstrably,” any more than may the mystery of the Trinity. Simply put, “the inception of the world cannot be demonstrated from the standpoint of the world itself. (32) At bottom, for Aquinas, the problem with the Aristotelian argument for the eternity of the world is that it conflates efficient causation and creation: “The first mover was always in the same state, but the first movable things was not always been in the same state, because it began to exist, whereas previously it had not existed. However, this was brought about not by change but by creation, which is not change.” (33) Again, “[Aristotle’s] argument did not proceed from the consideration which regards the universe as taking its origin from God, but from the consideration that an agent which begins to act must itself be moved; in other words, he was thinking of a particular cause, not the universal cause.” (33)
In a sense intervening between Aquinas and Siger of Brabant was Boethius of Dacia. A colleague of Siger at Paris, he would later meet a similar exile upon the Condemnation of 1277, although his later biography is unclear. Boethius’ mid 1270s treatise, yet another installment in the De Aeternitate Mundi genere, differs markedly from the treatment of Siger, inasmuch as it makes explicit the implications of the position for the scope of philosophy’s truth-claims. At the very onset of his work, Boethius straddles philosophy and theology with corresponding obligations: one must assent to demands of revelation, in necessary, without rational justification, to avoid heresy; similarly, one must submit to reason in reference to things which are not self-evident but do admit of rational explanation, for to do otherwise would be to be unphilosophic. (34) For Boethius, unphilosophic is perhaps the key word: more than anyone else in Europe, he was target of 1277’s lead proposition, having maintained in his treatise De Summo Bono that philosophic life represented the highest natural good of man.
Within this context, however, he shares neither Siger’s bald disregard for the implications of the quaestio, nor Aquinas’ politically hesitant skepticism (or sagacity?). Instead, recognizing the co-dependency of theology and philosophy, he seeks an alliance of mutual advantage,
so that faith’s position may be more firmly maintained, even though in certain cases it cannot be demonstrated, lest otherwise we fall into foolishness by seeking demonstration where such is not possible; or into heresy by refusing to believe that which should be held on faith and which cannot be demonstrated. (35)
Having set forth his aims, Boethius then proceeds to lay out the typical arguments against the eternity of the world, starting from the argument that the world must come after its first principle in duration. He then runs through ten more arguments, emphasizing that creation is not identical with mere generation, and noting a sort of ontological argument in that the totality of time and motion are subject to addition, by category, and are therefore not eternal. Then the philosopher reverses his course and raises a series of arguments for the eternity of the world, aiming to demonstrate that it can be eternal. Heading the list is, as one would expect, Siger’s argument that effects may be simultaneous with their causes in duration. From this, issue several arguments in favor of eternal particular effects. Boethius now shift to arguments that world actually is eternal, starting with in argument that the world is incorruptible because it is not generated, and generally recapitulating Siger’s arguments in brief, especially emphasizing that a primary will, mover, or agent is eternal and must have some eternal effect coeternal with its action. (36)
After rehearsing counter-objections to these arguments, which he now excuses as the potential arguments of heretics, Boethius proceeds to advance upon a solution. In the first place, he insists that philosophy ought to employ reason towards whatever may be grasped by human reason: “it belongs to the philosopher to determine every sort of question which can be disputed by reason; for every question which can be disputed by rational argument falls within some part of being,” which is the province of philosophical investigation. (37) Secondarily, he asserts that the philosopher cannot show by rational arguments that the first motion and the world came to be.” The philosopher, as a natural scientist, is categorically constrained by the limits of his own science: “one skilled in a given science may prove, concede, or deny something only in terms of the principles of his own science.” (38) Furthermore, the natural world is the first principle accessible to philosophy: “although nature is not the first principle in the absolute sense, nonetheless it is the first principle in the realm of natural things.” (39) The upshot of this is that the natural philosopher altogether unable to consider creation:
For nature produces its every effect from a subject and from matter. But production from a subject and matter is generation, not creation. Therefore the natural philosopher is unable to study creation. . . . Since the making of the world and its production in beings cannot be generation, as is evident, it follows that in no part of natural science will the making of the world or its production in being be taught for production is not natural and therefore does not pertain to the natural philosopher. (40)
Boethius thus speaks in two radically different categories as philosopher and Christian. However, the natural scientist is able to be informed of the possible existence of higher causes, and ought not to assert or to deny them on the basis of reason or natural philosophy. (41)
Does Boethius beg to break the law of non-contradiction? In his sharpest articulation: “one may say . . . both that the world and the first motion began to be and that the natural philosopher speaks the truth when he denies that the world and the first motion began to be.” (42) Again, this formulation looks exactly like impassable “double-truth,” until we remember that unbreakable category distinctions render it non-contradictory. Thus, when Boethius announces that “clearly there is no contradiction between Christian faith and philosophy concerning the eternity of the world,” he may immediately proceed “to prove that what is contrary to the truth, that is, that the world is coeternal.” (43) He develops his refutations of all of those arguments originally raised to demonstrate that the world is eternal, quite in terms of higher supernatural causes, emphasizing the will and personality of God as known through revelation. In sum, “When someone puts aside rational arguments, he immediately ceases to be a philosopher; philosophy does not rest on revelations and miracles.” (44) From this perspective, Condemnation no. 90 seems grossly unfair. “That the natural philosopher should deny without qualification that world began to be since he bases himself upon natural causes; but the believer can deny the eternity of the world because he bases himself on supernatural causes.” (45)
In contemporary parlance, the “philosopher” of Siger and (especially) Boethius is our “hard” scientist. Their stuggles to come to terms with the relations of natural and supernatural causation are still very revelant for us as modern citzens of a technocratic age. Against the mounting imperialism of neo-Darwinian biology , quantum physics, and astrophysics, which regularly leave useful hypotheses and indulge in the highest orders of metaphysical speculation, Boethius and Aquinas remind us that it is possible to use natural philosophy and scientific knowledge without confuting the Christian Gospel. Aristotle and his sons would seek to demand a halt to infinite regresses, but only out of convenience: infinite regresses invoke an infinite God. Similarly, modern philosophers of nature are left staring at the unverifiable phenomena-savers in the form of black holes and sub-atomic physics, looking at the metaphysical limits of matter. In particular, the sort of hard category distinctions erected by Boethius provide an exemplary model for meaningful interaction between science and faith today: We know God’s act of creation through our senses, and act upon this through our reason, but we cannot thereby know God as he is in himself, apart from revelation.
(1) This classification is taken largely from John F. Wippel, “The Condemnations of 1270 and 1277 at Paris,” The Journal of Medieval and Renissance Studies 7 (1997): 173-74.
(2) Cf. H. Denifle and A. Chatelain, Chartularium Universitatis Pariensis (Paris, 1889), I:486-87; in Wipgel, “Condemnation,” 179.
(3) “Condemnation of 219 Propositions,” E. L. Fortin and P. D. O’Neill, trans. , nos. 1, 2; in Arthur Hyman and James Walsh, ed., Philosophy in the Middle Ages, 2nd ed. (Indianapolis: Hackett Publishing Co., 1973), 585.
(4) Ibid., no. 6.
(5) Ibid., nos. 4, 5.
(6) Ibid., no. 8.
(7) Wipgal, “Condemnation,” 191.
(8) “Condemnation,” passim; in Hyman and Walsh, Middle Ages, 585-91.
(9) Ibid., 519.
(10) Averroes, “The Decisive Treatise Determining the Nature of the Connection between Religion and Philosophy,” G. F. Hourani, trans.; in Hyman and Walsh, Middle Ages, 305.
(11) Ibid., 305.
(12) Ibid., 306.
(13) Ibid., 306-7.
(14) C. H. Lohr, “The Medieval Interpretation of Aristotle”; in Norman Kretzmann, Anthony Kenny, and Jan Pinborg, eds., The Cambridge History of Later Medieval Philosophy (New York: Cambridge University Press, 1982), 90.
(15) Siger of Brabant, “De Aeternitate Mundi,” Lottie H. Kendzierski, trans.; in On the Eternity of the World: St. Thomas Aquinas, Siger of Brabant, St. Bonaventure (Milwaukee: Marquette University, 1984), 84.
(18) Ibid., 85-86.
(19) Ibid., “Introduction,” 80.
(20) Ibid., 90.
(21) Ibid., 91.
(22) Ibid., 95.
(23) Ibid., 93-94.
(24) Ibid., 94.
(25) Thomas P. Bukowski, “The Eternity of the World according to Siger of Brabant: Probable or Demonstrative?” Recherches de théologie ancienne et médiévale 36 (1969): 225-229.
(26) Thomas Aquinas, “De Aeternitate Mundi,” Cyril Vollert, trans.; in On the Eternity of the World: St. Thomas Aquinas, Siger of Brabant, St. Bonaventure (Milwaukee: Marquette University, 1984), 18.
(27) Ibid., 19.
(28) Ibid., 21.
(29) Ibid., 22.
(30) Thomas Aquinas, Summa Theologica, I.46.1; in Ibid., 61.
(31) Summa Theologica, I.46.2; in Ibid., 66.
(32) Summa Theologica, I.46.1; in Ibid., 62.
(33) Thomas Aquinas, De Potentia Dei, Question 3, Article 17; in Ibid., 52-53.
(34) Boethius of Dacia, On the Supreme Good; On the Eternity of the World; On Dreams, trans. with intro. by John F. Wippel (Toronto: Ponifical Insitute of Medieval Studies, 1987), 36.
(35) Ibid., 37.
(36) Ibid., 37-44.
(37) Ibid., 47.
(40) Ibid., 50.
(41) Cf. Ibid., 50-51.
(42) Ibid., 52.
(43) Ibid., 56-57.
(44) Ibid., 65
(45) Cited in Ibid., 18.
Now these things can be known in two ways, either by being impressed on their souls as they really are or by being impressed on them through affinity and symbolic representation. In that case symbols arise in man's minds, which reproduce them by imitation. The philosophers in the city are those who know these things through strict demonstrations and their own insight; those who are close to the philosophers know them as they really are through the insight of the philosophers, following them, assenting to their views and trusting them. But others know them through symbols which reproduce them by imitation, because neither nature nor habit has provided their minds with the gift to understand them as they are. Both are kinds of knowledge, but the knowledge of the philosphers is undoubtedly more excellent. Some of them know them through symbols which reproduce them know them through symbols which are near to them, and some through symbols slightly more remote, and some through symbols which are even more remote from these, and some through symbols which are very remote from these. Now, these people are reproduced by imitation for each nation and for the people of each city through those symbols which are best known to them. But whch is best known often varies among nations, either most of it or part of it. Hence these things are expressed for each nation in symbols other than those used for another nation. Therefore it is possible that excellent nations and excellent cities exist whose religions differ, although they have as their goal one and the same felicity and the very same aims.
When these things thus held in common are known through strict demonstrations, no ground for disagreement by argument can be found in them, neither by introducing sophistic fallacies nor by somebody's lack of understanding: for then the point disputed would not be the thing itself but his wrong notion of it. But when they are known through symbols which reproduce them by imitation, grounds for objection may be found in the symbols, in some less, in others more, and grounds for objection will be more easily seen in some and less in others. It is not impossible that among those who know these things through symbols, there is someone who puts his finger on the grounds for objection to these symbols and holds that they are inadequate and false.
There are different kinds of these people: first those who seek the right path. When one of them rejects anything as false, he will be lifted towards a better symbol which is nearer to the truth and is not open to that objection; and if he is satisfied with it, he will be left where he is. When that better symbol also is rejected by him as false, he will be lifted to another rank, and if he is then satisfied with it, he will be left where he is. Whenever a symbol of a given standard is rejcted by him as false, he will be lifted to a higher rank, but when he rejects all the symbols as false and has the strength and gift to understand the truth, he will be made to know the truth and will be placed into the class of them who take the philosophers as their authorities. If he is not yet satisfied with that and desires to acquire philosophical wisdom and has himself the strength and gift for it, he will be made to know it.
Abu Nasr Al-Farabi, The Perfect State, trans. Richard Walzer, 17.2-4.
I've been reading John Finnis on Natural Law and Natural Rights.
Straussian and medievalist Charles Butterworth has an interesting set of books.
si dederit homo omnem substantiam domus suae pro dilectione quasi nihil despicient eum.
The Summer 2003 issue of Daedalus highlights the topic of religion and secularism. One of the better articles available online is Nikki Keddie, "Secularism and its discontents."
I picked up a copy of Kirk and Raven, The Presocratic Philosophers the other day, and am looking forward to "doing it" at some point.
Before I get to do this, however, I must finish Abu Nasr Al-Farabi writing on the perfect city.
Averroes is in, contra Mr. Allen. :)
Within the past few weeks, I have discovered the difference between true love and unrequited infatuation.
I haven't been getting enough sleep lately.
Patent law is interesting.
Another of my brothers got married and is on his honeymoon now.
God is very, very good.
If someone today wished to grasp on his own all of the proofs inferred by those in the legal schools who reflect upon the controversial questions debated in most Islamic countries, even excepting the Maghrib, he would deserve to be laughed at, because that would be impossible for him--in addition to having already been done. This is a self-evident matter, not only with respect to the scientific arts, but also with respect to the practical ones. For there is not an art among them that a single person can bring about on his own. So how can this be done with the art of arts--namely, wisdom?
Since this is so, if we find that our predecessors in former nations have reflected upon existing things and considered them according to what is required by the conditions of demonstration, it is perhaps obligatory on us to reflect upon what they say about that and upon what they establish in their books. Thus, we will accept, rejoice in, and thank them for whatever agrees with the truth: and we will be alert to, warn against, and excuse them for whatever does not agree with the truth.
From this it has become evident that reflection upon the books of the Ancients is not only obligatory according to the Law [Sharia], for their aim and intention in their books is the very intention to which the Law urges us. And it has become evident that whoever forbids reflection upon them by anyone suited to reflect upon them--namely, anyone who unites two qualities, the first being innate intelligence and the second Law-based justice and moral virtue--surely bars people from the door through which the Law calls them to cognizance of God--namely, the door of reflection leading them to true cognizance of Him. This is extreme ignorance and estrangement from God.
Averroes [Ibn Rushd], The Decisive Treatise, trans. Charles E. Butterworth (Brigham Young Univ. Press, 2001), § 8-10.
I guess I haven't written a whole lot lately. I've been extremely busy lately with my interim job. I've been severely neglecting my "high and lonely destiny," having pitifully gotten only as far as Descartes' fifth meditation in about as many weeks. I have, however, also found what I can only describe, in comparison with prior experiences of misplaced affection, unbalanced interest or unrequited infatuation, as exactly what I've been looking for. And that, my friends, is not really a subject for this blog. :)
For all of those who have associated me with my rusty Celica since before Hillsdale, you may be grieved to know that I have retired the hulk and replaced it with a used blue-black Honda Accord of great condition!
Today is a day that will live in infamy. I was dismayed by our high court's Lawrence decision, but it wasn't unexpected. Scalia's dissent was very good--and very bitter. Everyone should read it. Maybe I should blog it.
Ron Weasley is still alive!
I wasn't planning to, but found myself at B&N on Friday evening and then proceeded to stand in line for 40 minutes to obtain Harry Potter V. I then stayed up til 5:20 a.m. and got 306 pp. into the tome. I finished Tuesday night. Probably better than IV, but not as good as II or III.
There will be eight books after all!
The thing I was most surprised by in Harry Potter V was J. K. Rowling's clever ruse for writing an extra book. But putting Dolores Umbridge in charge at Hogwarts, she was able to fail the entire student body for that year. Accordingly, the next volume will be "Year Five at Hogwarts (Repeated)." This will allow Rowling to write not seven, but eight books in all, and milk the franchise for a corresponding portion of additional earnings. :(
I got my final grades today and was pleased to discover that the fifth semester (Fall 2002), the grades from which I had feared to check, was in fact my best semester at OSU--3 As, including both seminars. My final average was a measly 2.67, though; the 40 quarter-credit hours (i.e., my "Semitics minor") was 3.71. I suppose this does correlate somewhat with my final undergrad GPA of 3.675.
A conversation between Harriet Vane and the Dean of Shrewsbury College:
"I wanted to find out whether Annie could really have seen what she said she saw. These people sometimes let their imagination run away with them. If you don't mind, I'm going to lock these doors and remove the keys. I'd rather like a second opinion."
"Aha!" said the Dean. "The exquisite gentleman who kissed my feet at St. Cross Road, crying, Vera incessu patuit dean?"
[Recalling Aen. I.405: et vera incessu patuit dea. Ille ubi matrem.]
"That sounds characteristic. Well, Dean, you have got pretty feet. I've noticed them."
"They have been admired," said the Dean, complacently, "but seldom in so public a place after five minute's acquaintance. I said to his lordship, 'You are a foolish young man.' He said, 'A man, certain; and sometimes foolish enough to be young.' 'Well,' I said, 'please get up: you can't be young here.' So then he said, very nicely, 'I get your pardon for behaving like a montebank; I have no excuse to offer; so will you forgive me?' So I asked him to dinner."
- Dorothy L. Sayers, Gaudy Night, ch. 16.
Suffice it to say that I've had occasion and inclination, though never quite the nerve, to be such a foolish young man as Lord Peter Wimsey.
I spent the weekend with my brother and sister-in-law, more or less celebrating my birthday in the process. The drive out along US 142/42 was an interesting tour of a part of Ohio I haven't seen for a while--from the old United Technologies plant we almost purchased outside London to the triad of little universities just east of Xenia. We visted the Cincinnati Art Museum, dined in downtown Cincy, and attended a performance of a contemporary play at the Cincinnati Shakespeare Festival. The museum was disappointing relative to my memories, but this was first visit since seeing the Louvre, the National Gallery, the Vatican, and the Uffizi. They've reorganized some of the Hiram Powers marbles, and I don't think I succeeded in finding all of them. _Gingham Dog_ was an interesting and unexpectedly intense play depicting a marital breakdown between a white man and a black woman in New York in 1969. In many ways a fascinating, multivalent commentary on the several sides of the Civil Rights movement, it came at a high price: I don't think I've ever been so emotionally drained from watching leading actors yell at each other. All in all, a very good weekend away!
I'm officially done with all of my OSU coursework. Final round of finals are complete. It's a very odd feeling. I feel that I've truly graduated now, or that I'm on the outside looking in, or that it's time to get on with life, or (even!) just a little sad. :)
I think I did pretty well on my Arabic final, and then went and read the beginning of Gilgamesh XI, went out for pizza with the "guys" (my Akkadian class of classicists and Hebraists), then smoked a Partagas Black, then had (another) beer with Dr. DiCarlo (a polymath chiropractor, classicist, and budding orientalist whom I shall miss considerably), and had coffee with a friend who recently passed her Ph.D. generals.
Right now, I'm staring at The Critique of Pure Reason and wondering if I need to read the Meditations first. And it's now Friday the Thirteenth!
I'm almost done with my quarter coursework. All that remains for me to do will be completed next Thursday: to take an Arabic final (no mean feat, though), to attend a makeup Akkadian class in which we'll read from the section on the Flood in Gilgamesh, and then to go out for pizza with the Akkadian class.
Then, I'll be completely done with OSU and free of academic commitments. It will be a nice change. Time to do something economically productive and read widely outside of particular assignments and projects.
I just learned that two of my former colleagues at Hillsdale College, have been keeping rather well-developed blogs: Josh "The Big Blue Smurf made me known as 'Wa'" Mercer and one of Hillsdale's finer polymaths, Steven Fettig
I read Byron's drama this evening, for the first time, and was moved by (just) a few lines which I shall reproduce here:
Sorrow is knowledge: they who know the most
Must mourn the deepest o'er the fatal truth,
The Tree of Knowledge is not that of Life (I.10-11).
The Preacher's sentiment, well put.
Which had its birthplace in a star condemn'd,
The burning wreck of a demolish'd world,
A wandering hell in the eternal space (I.43-46).
Yet there was one--. . .
She was like me in lineaments-- her eyes
Her hair, her features, all, to the very tone
Even of her voice, they said were like to mine;
But soften'd all, and temper'd into beauty;
She had the same lone thoughts and wanderings,
The quest of hidden knowledge, and a mind
To comprehend the universe: nor these
Alone, but with them gentler powers than mine,
Pity, and smiles, and tears-- which I had not;
And tenderness-- but that I had for her;
Humility-- and that I never had.
Her faults were mine-- her virtues were her own--
I loved her, and destroy'd her! . . .
Not with my hand, but heart-- which broke her heart;
It gazed on mine, and wither'd. I have shed
Blood, but not hers-- and yet her blood was shed--
I saw, and could not stanch it (II.198-215).
Aye, if only the Gretchen we seek were a fellow intellectual. :(
l was detain'd repairing shattered thrones,
Marrying fools, restoring dynasties,
Avenging men upon their enemies,
And making them repent their own revenge;
Goading the wise to madness, from the dull
Shaping out oracles to rule the world
Afresh, for they were waxing out of date,
And mortals dared to ponder for themselves,
To weigh kings in the balance, and to speak
Of freedom, the forbidden fruit. (II.360-369).
Have been beyond the dwellers of the earth,
And they have only taught him what we know--
That knowledge is not happiness, and science
But an exchange of ignorance for that
Which is another kind of ignorance (II.428-433).
Old man! there is no power in holy men,
Nor charm in prayer, nor purifying form
Of penitence, nor outward look, nor fast,
Nor agony, nor, greater than all these,
The innate tortures of that deep despair
Which is remorse without the fear of hell
But all in all sufficient to itself
Would make a hell of heaven,-- can exorcise
From out the unbounded spirit, the quick sense
Of its own sins, wrongs, sufferance, and revenge
Upon itself; there is no future pang
Can deal that justice on the self-condemn'd
He deals on his own soul (III.66-78).
Another Faustian sentiment.
Glorious Orb! the idol
Of early nature, and the vigorous race
Of undiseased mankind the giant sons
Of the embrace of angels, with a sex
More beautiful than they, which did draw down
The erring spirits who can ne'er return (III.174-179).
I linger yet with Nature, for the night
Hath been to me a more familiar face
Than that of man; and in her starry shade
Of dim, and solitary loveliness,
I learn'd the language of another world.
I do remember me, that in my youth,
When I was wandering,-- upon such a night
I stood within the Coloseum's wall,
Midst the chief relics of almighty Rome.
The trees which grew along the broken arches
Waved dark in the blue midnight, and the stars
Shone through the rents of ruin; from afar
The watchdog bay'd beyond the Tiber; and
More near from out the Caesars' palace came
The owl's long cry, and, interruptedly,
Of distant sentinels the fitful song
Begun and died upon the gentle wind.
Some cypresses beyond the time-worn breach
Appear'd to skirt the horizon, yet they stood
Within a bowshot. Where the Caesars dwelt,
And dwell the tuneless birds of night, amidst
A grove which springs through levell'd battlements,
And twines its roots with the imperial hearths,
Ivy usurps the laurel's place of growth;--
But the gladiators' bloody Circus stands,
A noble wreck in ruinous perfection!
While Caesar's chambers, and the Augustan halls
Grovel on earth in indistinct decay.--
And thou didst shine, thou rolling moon, upon
All this, and cast a wide and tender light,
Which soften'd down the hoar austerity
Of rugged desolation, and fill'd up,
As 'twere anew, the gaps of centuries;
Leaving that beautiful which still was so,
And making that which was not, till the place
Became religion, and the heart ran o'er
With silent worship of the great of old,--
The dead, but sceptred sovereigns, who still rule
Our spirits from their urns.(III.263-301)
This long soliloquy seems to me to be the most beautiful part of the poem; in part, because I remember all too well central Rome at night, with its shadows and antique romance. Oh, how it draws one to itself! :)
Whenever I go home for too long or visit with the now marrying-and-otherwise-being-preoccupied brothers, once I get back I find myself waxing despondent, pricked a little with despair at the future prospects and pricked a little with regret at where the onrush of time has left not only my once heady, buckish and exuberant youth, but also what seems now to have been a golden and idyllic past in which I was not nearly as considerate, appreciative, or studious as I ought to have been. Didn't Uncle Charles say that Greatgrandfather always found it most hard when "all of the family would leave"?
"Matrix II" was a very fun action movie, and includes some very indulgent set-pieces. Mace Windu . . . uhmf, I mean Morpheus, has some very profound lines (e.g., "My beliefs do not require that I do"). It's almost as if Yoda were magically imprisoned in the body of some big, super-cool, bad-ass black dude. Trinity is, as ever, "super sexy" but does seem to have "lost that mysterioso sado-masochistic edge" as one review put it. And Neo, well, is still Keanu Reeves.
I went to my brother's graduation at Geneva College this weekend. Geneva is the official college of the Reformed Presbyterian [Kirk] of North America, and the home of Covenanterdom on earth. Theirs is undoubtedly an heroic enshrinement of the past--specifically of a Reformation splinter-world which Cromwell came to end--and as such is a dissent from a modern world gone wrong, an order fatally intoxicated with the sweet liqueur of false autonomy. The motto itself, "For Christ and Country," is a blunt political demand for "no king but Christ," made, in fine, in despite of Tudor despotism. But equally, the Covenanters serve as a warning of how the Church can degenerate into an historically-conditioned ethnically-delimited cult and, like Tolkien's elves, "dwindle to a rustic folk of dell and cave, slowly to forget and to be forgotten." Yes, as heirs of a Christian Roman civilization which united the virtue of Athens with peace of Jerusalem, our love for great books and great paintings is deeper than the depths of the Sea; as medieval souls alienate to a modern world of machines, bureaucracy, and corporate fictions, our regret is indeed undying and never be wholly assuaged. :) But what is over and past--which I suggest includes both the "Old" West and "Christian" America--is now usefully chiefly as a treasury of historical lessons, a coffee-table photo-atlas of wrong turns, a mine of moral instruction and biographical inspiration. The world has been changed too many times to make the honouring of old ordainances too much the point of honor, let alone the point for defining where the community of the Elect begins and ends. Too much blood and cellophane shrink-wrap stand between us, as the Matrix-conscious children of flower children, and the heroes of the SL&C.
And don't get me started on the regulative principle . . .
The Silmarillion, p.278.
UPDATE:Gideon Strauss has posted a very nice list of weblinks--I'm tempted to say "bibliographic note," but that somehow doesn't feel right--dealing with Strauss and his influence in the present administration and in Conservativism generally.
Apparently, there's a need for professional interpreters of Klingon in the mental health field. Apparently (unless this is all a gigantic prank), Gilgamesh (!), Hamlet, and many other keynote works of world lit have been "uncovered." There is even a translation of the Bible in progress."You haven't experienced Shakespeare until you've read him in the original Klingon" (screenplay, Star Trek VI).
I went to my law school hooding yesterday, and received a very nice scarlet and silver hood after lining up with 200 other J.D. candidates for about two hours. If I were a girl, I'd exclaim "It's so cute!," but I'll spare all of you the hysteronics. Anyways, my empty diploma case should come in very handy--unless I fail a class.
I was especially grateful to have my parents, sisters, grandmother, and favorite aunt and uncle in attendance!
Believe it or not, I was voted "Most Obscure 3L" in a poll of the class. Rather odd for a guy who was Homecoming (Philosopher-)King at Hillsdale College. I admit, I was a bit aloof, but somehow I just never embraced the legal education culture; it all seemed so--false and hollow.
This does, however, raise the Q of incipient racism and fascism in Tolkien. And this could could be be partially answered, of course, by remembering Gandalf's remarks about pitying even his slaves and Aragorn's grant of Lake Nun to the Orcs after their defeat.
I'm pleased to announce that I have completed all of my coursework and finals and am done, over, and through with law school (barring potential failure in some course). Today, at 3 p.m., I am to be hooded in a large ceremony at the Ohio Theatre.
It's hard to say how glad I am to be done with law school. Frankly, had I understood it better ab initio, I wouldn't have entered at all, but would have hung out for the "right" terminal program. One can always do law school later, especially if it's really just to be a adjunct graduate degree. I wish I had been more involved in things at the law school, and I still don't really feel as though I know very many students at all, but such are "what-ifs" and "might-have-beens." So very different from Hillsdale, where I somehow became king just by trying to be authentically philosophical and personable; here, I tried to be that self a few times, and the profs just stared and the students asked me if I had sat down in the wrong building.
My estimation of the American legal and legal education system could fill a small book--and probably will, Godwilling. The most important thing I learned in law school was how to be able to argue for things that one really doesn't believe in all, as means of exercising power over others, or of appeasing those in power, or of simply making some dialectical progress towards absolute truth. LOL. That was a skill which I didn't learn in the strictures of Hillsdale's bunker mentality (although perhaps I would have had I taken huge doses of Shtromas and Stephens). My best classes here were those which tended towards the philosophical: first amendment, international, jurisprudence, crim theory. So much of law school is simply sophistry--making the weaker argument the stronger. So much of political theology of SCOTUS is simply penis-envy of the Roman Pontiff. And so much of what even conservatives would protect and conserve in the law are no more than socially-constructed historicisms stemming from when the kings of the seventeenth-century earth took their stand against the Messiah's overlordship.
With legal education behind me, I look forward to finding some gainful means of employment and resuming neglected areas of study. First and foremost among those will be a renewed study of the English language. I've forgotten how to write. Well, not quite, but close. Legal writing, coupled with the Chinese water torture of so many bloody cases, has left my prose style suffering from . . . well, water damage. I need to immerse myself deeply in the sound-world of our golden and silver poetry--Spenser, Marlowe, Shakespeare, Donne, Milton, Pope, and the Romantics--and make a systematic study of periodic English prose, analyzing the syntax and tropes of a handful of worthy authors the way I used to read Cicero.
Secondarily, I must reclaim my infirm Latin and very sick Greek. Arabic has been good for me in emphasizing other things about how a language ought to be studied, especially the aural/oral element, and Akkadian has reminded me of why I took up Greek in the first place: to comprehend epic and tragedy. But I must return upwards in time ad fontes meos.
Tityrus hinc aberat. ipsae te, Tityre, pinus
ipsi te fontes, ipsa haec arbusta vocabant.
My familiarity with Vergil is getting closer to bare adequacy: almost all of the Eclogues, most many times; almost all of Aeneid I-VI. But I don't really know Horace, have never really known Catullus and Ovid, and have forgotten Livy. In Greek, there's always Homer, although Pindar is incredibly worthwhile. There was a time at which I could sight-read a page of Plato and need to ask for just two words. Maybe I can regain that. Maybe not.
Oh, and another thing I would really like to do in this next phase of life is to read, well and hard, the text of the female body--i.e., get married and learn to become a good lover (in that order). osculetur me osculo oris sui quia meliora sunt ubera tua vino. Which, I might add, is better too than art itself: vino is, after all, archetypically art.
Last and most importantly, there is the opportunity to master the canon of moral and political philosophy to which Shtromas, really, introduced me and which legal education steadfastly refused to treat. Basically, I have an enormous amount to read, from Averroes and Ockham and Descartes and Leibniz, to the poetry of Camoes and Ronsard, through Kant and Goethe, up to Sein und Zeit and Surveiller et Punir. I do confess a little attraction to the methods and the aspirations of the Straussians, although I am, perhaps, more of a Christian and less of a rationalist, fascinated as I may be by their Neorenaissance dream of cultivating civic virtue through the rhetorical proclamation of ethical reflection. What we really require, though, is a new Christian political and moral philosophy which looks back before Westphalia, unto Christendom as normative, and yet takes account of Whiggery and Marxism. To this end, I will read and write.
Does anyone want to start a Jesuit order for reformed boys and girls?
"I saw also what you saw, Eomer. Few other griefs amid the ill chances of this world have more bitterness and shame for a man's heart than to behold the love of a lady so fair and brave that cannot be returned. Sorrow and pity have followed me ever since I left her desperate in Dunharrow and rode to the Paths of the Dead; and no fear upon that way was as present as the fear for what might befall her. And yet, Eomer, I say to you that she loves you more truly than she loves me; for you she loves and knows; but in me she loves only a shadow and a thought: a hope of glory and great deeds, and lands far from the fields of Rohan."
The Return of the King, p. 143.
Yes, let us take solace in great literature. Who says that Tolkien doesn't have a rather good grasp of human nature? :)
praecipitat, suadentque cadentia sidera somnos (II.9-10).
"And now dew-ladden night falls from heaven, and wheeling stars soften sleep."
This frustration will last as long as Christians continue to understand Christianity as a religion whose purpose is to help, as long as they continue to keep the "utilitarian" self-consciousness typical of the "old religion." For this was, indeed, one of the main functions of religions: to help, and especially to help people to die. For this reason religion has alwways been an attempt to explain death, and by explaining it, to reconcile man to it.
I'll compete this quote later... LOL
On Ex. 21:7ff
To apply this law today we need to ask whether the modern American wife is more like the Israelite free wife (with lots of independent power and property) or more like the slave wife. Without intending any insult, I think the modern wife is more like the slave wife, having relatively little independent power. The proof of this, for me, is the fact that men frequently beat their wives in this society, and get away with it.
* * *
On Ex. 22:16
Modern American women are often more in the position of slave wives than free ones, according to the Bible. They seldom have their own separate money. In the proper "Christian" home of today, the husband has all financial control. He does not provide his wife with money at marriage, nor later on (although he may adorn her with jewelry, which is hers to keep). If she takes a job, it is assumed that he will have ultimate say-so over the spending of her money. The Biblical marriage, however, while it may appear to entail more tension and negotiation between husband and wife, also produces people who are much more mature.
The Law of the Covenant, p. 84, 148
sha nagba imuru ishdi maati
sha kullati idu kalaama hassu
I'm reading the proem to Gilgamesh in the original Akkadian. This is a dream come true. Of course, the book we have is itself a dream come true--cuneiform text, transliteration, and glossary with complete identifications of all forms and occurances. Still spent half-an-hour this evening looking for a shin-stem verbal form, though.
I'm looking forward to seeing how this compares to Homer. The vocabulary is quite rich.
Okay... I admit that blogging an entire paper is a bit excessive. LOL My excuse is that I haven't blogged very much lately. And, honestly, I think the paper includes some nice phrases. :) I'm especially proud of my plea for something "beyond the one and many" at the end of the justification section. I rather doubt that my prof will like it, but--what the heck!--it's the last paper of the last class, and really something of a response to my hitherto undigested experiences in Family Law and Jurisprudence last semester.
The Interception of Sex by Violence:
Sadomasochism and the Criminal Law
From the inception of human society, the law has tended to proscribe violence on the part of lesser individuals and limited violence to the hands of great men, such as kings, nobles, or judges. From the early modern period onwards, the law has been thought to monopolize violence in the executive arm of the State, which censures any competing eruptions of violence in civil society, according to the provisions of the criminal law. Although traces of the older Aristotelian and Semitic sense of crimes as wrongs in personam linger on--mostly in the tort system and in the occasional incorporation of restitution in criminal sentencing--modern criminal law treats violence primarily as a crime against the res publica and against public order. To the extent to which this is realized, the criminal law is concerned primarily with distributive justice and not with retributive justice as such. (1)
Sadomasochism challenges the civil monopoly of violence in its employment of private violence for personal gratification.(2) In sadomasochistic activity, a sadistic actor inflicts violence upon a masochistic subject for mutual gratification. It is, in the Bard’s apt phrase, “The stroke of Death is as the lover’s pinch / Which hurts, and is desir’d.”(3) As I shall use the term in this paper, sadomasochism is inherently consensual inasmuch as it involves the willing participation of both sadists and masochists. I do not intend to challenge the claim of masochists that they, subjectively, believe that they need pain.(4) Where the subject is not masochistic—i.e., the subject does not enjoy and does not consent to the infliction of pain at the hands of another—the activity is merely sadistic, not sadomasochistic. As will be shown, it makes little sense, given the context of a free society, to speak of nonconsensual sadomasochism, save perhaps as a label for the aggregate of all of these activities.
Sadism, masochism, and their conjunction, sadomasochism, are essentially cathartic activities in which the sadists or masochists (or both) experience emotional climax and a sense of release. Sadomasochism, sadism, and masochism are often erogenous activities conceptualized in sexual fantasy, accompanied by sexual arousal, and culminating in sexual contact or sexual intercourse. Yet they are not necessarily erogenous. Throughout history, man has sought release through a variety of mechanisms. Greek tragedy, for instance, no less than its modern cousin, the horror film, seeks to affect its audience with pity and fear.(5) Asceticism seems to create and perfect chronic pain through deprivation or stimuli, in order to achieve a heightened spirituality. Self-flagellation exemplifies such nonsexual masochism, but really no less than the entire medieval system of penance. On the other hand, sadism, masochism, and sadomasochism are deeply rooted in the traditional experience of childrearing. In the last analysis, no evaluation of sadomasochism can hope to be complete without resolving its troubling, ambiguous relationship with the form and content of childhood discipline. But the explication of such connections must be placed outside the scope of this paper, equally as must the consideration of those theological questions of sin and death, which, I think, sadomasochism so very quickly begs.(6)
In modern society, sadomasochism is typically justified in terms of a right of personal autonomy. “At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.”(7) Although this right may be claimed as justification for other potentially masochistic activity such as body piercing, its primary function is to underwrite the free love of liberal democracy’s “liberated” citizen. To the extent to which sadomasochism is identified with individual sexual autonomy, it becomes a “hot,” highly visible shibboleth within a larger debate over place of human sexuality in civil society and in the criminal law. It is my contention that inasmuch as sadomasochism is identified with sexual autonomy, it has become a proxy, even a guerilla, in what is by now a long, cold kulturkampf between the “old” Right and the “new” Left.(8) As 1968’s revolutionary armada coasts into apparent stalemate with various conservative flotillas on flagship issues such as abortion, prostitution, and homosexuality, sadomasochism functions as a bit of speculum in which we may reflect on and perhaps reconsider the post-procreative jurisprudence of the late twentieth century.
Sadomasochism in the Case Law.
Although the intersection of sex with violence may give rise to a variety of criminal offenses, sadomasochism primarily implicates the criminal offense of assault, and so our review of the case law will focus on that offense.(9) Traditionally, assault with violence or force has been considered a breach of the peace for purposes of criminal law.(10) In the presence of injury, assault constitutes a breach of the peace to which the victim is merely a witness for the prosecution (and a potential tort plaintiff). In the absence of injury or where the injury or imposition is very slight, the consent of the victim might be available as a defense. Traditionally, consent is allowed as a defense in socially beneficial activities involving assault, such as contact sports.(11)
Unlike most sports, sadomasochistic activity necessarily involves the intentional infliction of pain on one of the participants. This infliction of pain need not be accompanied by serious bodily injury, and, in the vast majority of instances, is not. And yet, rather undeniably, the infliction results in minor bruising and psychological conditioning in many instances. Accordingly, American courts have consistently refused to recognize the consent of the masochistic subject as a defense to assault. In People v. Samuels, a male sadist was convicted of aggravated assault on the basis of his filming of a beating of a masochistic male subject; a California appellate court held that the consent of the victim was not a defense, inasmuch as sadomasochism was not analogous to a contact sport.(12) In Commonwealth v. Appleby, the Massachusetts Supreme Judicial Court upheld the conviction, for assault and battery with a dangerous weapon, of a male sadist who beat his live-in male lover with a ridding crop. The actual holding of the appeal was to reject the defense that, as a matter of law, the victim could have consented to the violence.(13) Evidence offered at trial indicated that the victim was essentially analogous to a battered spouse—and had actually sought sheltered in a monastery after one of the beatings.(14)
Perhaps the most famous articulation of denial that masochistic victims’ consent can be a defense to assault is found in the British “Spanner” case, Regina v. Brown.(15) This case resulted from a sustained police investigation into a private sadomasochistic club in London; the sadists were a group of older men who engaged in sadomasochistic activities with a number of younger men over the time period of a decade. The activities were consensual and sexually gratifying yet painful to the extreme and (at the risk of prejudice) positively brutal.(16) Videotapes were made and distributed. Writing for a 3-2 majority, Lord Templeton distinguished this sadomasochistic conduct from sporting activities as effecting violent injury not as a secondary incident to a social good, but as an end in itself and, thus, positively evil.
In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty. The violence of sado-masochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous. I am not prepared to invent a defence of consent for sado-masochistic encounters which breed and glorify cruelty . . . Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised.(17)
The dissenting lords argued that the conduct should be analyzed under the law of private sexual relations, but the European Court of Human Rights unanimously upheld the decision. The court held that conviction of the sadists was not inconsistent with Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.(18) Observing in dicta that the activities in question might lie outside the defendants’ private lives by virtue of the club-setting, the court declined to resolve the question of whether the State could prohibit such sadomasochism as moral evil, and found only that the State was justified in prohibiting the activity on account of its potential for harm—precisely as genital torture.(19)
The New York case of People v. Jovanovic might seem to offer support for the view that consent may be a defense for sadomasochism, but this interpretation seems dispelled by a close reading. At trial, a male sadist was convicted of assault, sexual abuse, and kidnapping for his actions in what seems to have been a sadomasochistic encounter gone away.(20) A New York Appellate Division court reversed his conviction on evidentiary grounds, finding that the exclusion of email correspondence with the victim prejudiced his ability to present his defense and to confront his accuser; this decision was upheld by the New York Court of Appeals.(21) Significantly, however, the Appellate Division rejected the defendant’s argument that consent was a defense to sadomasochistic assault or that he had a constitutional right to engage in sadomasochistic sex.(22)
Sadomasochism and Justifications for Punishment.
In modern criminal law, two broad species of rationales for the imposition of penal sanction are generally understood to be available.(23) The first of these is utilitarian, and is comprehended in the consequentialist and teleological principle of utility described by Jeremy Bentham. “By the principle of utility is meant that principle which approves or disapproves of ever action whatsoever, according to the tendency which it appears to have to augment or diminish the happiness of the party in whose interest is in question.”(24) The second of these is retributive, and has its locus classicus in the deonotological moral theory of Immanuel Kant. Retributivism, for Kant, is but an implication of the categorical imperative. “The categorical imperative, which as such only affirms what obligation is, is: act upon a maxim that can also hold as a universal law.”(25)
Utilitarian theory looks to the good of the community and asks whether a particular action serves to increase or decrease the “sum of the interests of the particular members who compose [the community].”(26) Utilitarian theory conceives of happiness and good in essentially quantitative, “hedonistic” terms: “By utility is meant that property in any object whose tendency is to produce benefit, advantage, pleasure, good, or happiness . . . or to prevent the happening of mischief, pain, evil, or unhappiness to what party whose interest is considered.”(27) In Bentham’s view, asceticism is the categorical denial of the principle of utility, by which men prefer pain to pleasure, and is the fount of crime.
[A]ny one who reprobates any the least particle of pleasure, as such, from whatever source derived is pro tanto a partisan of the principle of asceticism. It is only upon this principle, and not from the principle of utility, that the most abominable pleasure which the vilest of malefactors ever reaped from his crime would be to be reprobated, if it stood alone. The case is, that it never does stand alone; but is necessarily followed by such a quantity of pain . . . that the pleasure in comparison of it, is as nothing: and this is the true and sole, but perfectly sufficient, reason for making it a ground of punishment.(28)
To his eighteenth-century mind, asceticism is the common quality of traditional religious superstition as well as much of classical philosophy. Adherents of asceticism “think it meritorious to fall in love with pain” and accordingly misapply the principle of utility.(29)
On its face, then, utilitarianism seems diametrically opposed to the whole purpose of sadomasochism. In his empirical-rationalistic schema, pleasure is unequivocal and obvious: Bentham can accept the masochist’s identification of bodily pain with sexual pleasure no less than the religious ascetic’s identification of eternal pleasure over bodily pain. But assuming for the moment, as masochists will say, with all subjective honesty, that they really do need the infliction of pain, utilitarian theory argues that the content of the criminal law must be informed by the happiness of the community, not the individual as such: laws and measures of government must be seek to increase the sum total of happiness in the community as a whole.(30)
The primary example of the utilitarian rationale for restricting consensual violence is the need to maintain able-bodied men for national defense. It is on this basis that contact sports have usually been allowed, for instance, and other forms of violence, such as amputations, have been prohibited.(31) Within the context of post-1965 America, we might analogize this rationale to the need to provide free citizens who may participate in the democratic process, free from fear and historical narratives of oppression. Sadomasochism, inasmuch as it perpetuates the iconography of servitude and punishment, arguably contradicts the principle of utility as applied in this context.
Retributive theory, on the other hand, considers only the individual on his or her own terms. In Kant’s system, “a human being can never be treated as a means to the purposes of another or be put among the objects of rights to things.”(32) The personhood and autonomy of the individual preclude this. Criminal punishment
can never be inflicted merely as a means to promote some other good for the criminal himself or for civil society. It must always be inflicted upon him because he has committed a crime. . . . He must previously have been found punishable before any thought may be given to drawing from his punishment something of use for himself or his fellow citizens.(33)
In other words, crimes may only be punished on account of the moral fault of the individual as a moral agent, and not because of any grand calculus of social engineering.
Superficially, sadomasochism might seem to be consistent with such a vision of autonomous and “self-actualizing” individuals. Similarities, however, because Kant’s vision and the gospel of our own time are disappointingly thin. Punishment is, in the first place, unavailable for the private use of the individual, any more than for the greater good of the community. Indeed, in Kant’s view, the individual owes himself moral duties of dignity and self-respect, which require him to eschew both servility and arrogance, and a final duty of self-knowledge, which requires him to known his own heart and search out his motives.
Moral cognition of oneself, which seeks to penetrate into the depths (the abyss) of one’s heart which are quite difficult to fathom, is the beginning of all human wisdom. For in the case of the human being, the ultimate wisdom, which consists in the harmony of a human being’s will with its final end, requires him to remove a obstacle within him (an evil will actually present within him) and to develop the original predisposition to a good will within him which can never be lost.(34)
Such duties, which are really the dictates of philosophy from Socrates down,(35) are inconsistent with the dark fantasies of sadomasochism and cannot be harmonized thereto. Sadomasochism promotes the brutalization and dehumanization of one human being at the hands of another; its playful confounding of pain and pleasure is the sexual equivalent of sophistry, not self-examination.
Furthermore, sadomasochism is arguably inconsistent with Kant’s major exception to his principle that each human being is an end in himself—marriage rights. In sexual intercourse, “a human being makes himself into a thing, which conflicts with the right of humanity in his own person.”(36) For Kant, this implies that sex must be characterized by equality and mutuality, values which sadomasochism explicitly undermines. Sexuality is not only legitimate only within marriage, but it is only truly possible within marriage: “that while that other person is acquired by the other, as if it were a thing, the one who is acquired acquires the other in turn; for in this way each reclaims itself and restores its personality.”(37) Although Kant was not privy to our modern biology, we might perhaps consider this exception, whereby a human being in converted into a thing, to be explained by the biological imperative of accessing the DNA of the other in procreation.
As an aside, I feel compelled to observe that the usual juxtaposition and dichotomy of utilitarian with retributivist rationales is intellectually problematic. This dichotomy tends to define individual and social goods in competition with one another and, indeed, as mutually exclusive in extremis. I suggest that what is missing here is an appreciation for the only partially teleological character of the utility principle. Utilitarianism fails to be perfectly teleological inasmuch as it admits into its calculus no truly infinite or transcendental good. Accordingly, it, just as Nazi Germany or Orwell’s dysutopia, stands vulnerable to the charge that there is some end, some good active in the universe beyond society as such. For the children of 1968, this good may very well be some cosmic coition, in whose name they may, following De Sade, choose to rebel against the social good and their own individual reason. And yet, can we not conceive of a good, greater than society’s, greater than which cannot be conceived? For we merely choose, as a social convention, the historical construct of 1648, not to discuss that Good in the context of the criminal law, even when deontological theory hands us its little imago on a silver platter.(38) So I can only observe that in an older and perhaps wiser time, philosophers thought that there was, properly, no conflict between the external good of society and the good will of the individual, as both corresponded, as macrocosm to microcosm, on a scala naturae to God as Lawgiver and Judge, whose representative the Monarch in this world was, and who, in turn, in his person united our retributive and utilitarian justifications for punishment.
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