Wednesday, June 29, 2005

Latinitas: How was Latin Pronounced

Here is one view (scroll down)

Monday, June 27, 2005

Cross-talk: What Should a Classics Curriculum look like?

Fleming at Chronicles has an answer up at his Autodidact column.

Here's a snippet:

The Trivium and Quadrivium were relevant to their own time, but have little use today. In the Medieval period, astronomy was important for several reasons, notably in showing there was a divinely arranged order in the universe. [...] Just as children should be encouraged to learn the names of trees and flowers, they should learn the major stars and constellations. There are also, to take another topic, better ways of teaching rhetoric and dialectic than were practiced in the Middle Ages.

The Middle Ages produced magnificent works of poetry and philosophy, which—contrary to the snobbish inclinations of many classicists including myself at an earlier age—should be included in the curriculum, but there is a lack of order and structure in so much Medieval literature that makes it far less useful in training the young.

Interesting take. The Trivium (but never, so far as I know, the Quadrivium) have been oversold in the homeschool market, I suppose. In a sense this is useful--where would we be in Classical Christian Education (CCE) without Sayers Lost Tools of Learning and Doug Wilson, I don't know. But the real Trivium, not Sayers' or Wilson's, is woven into our educational method as the distinction between Grammar School and College. The inherited, Traditional, order, is Grammar-Rhetoric-Logic. Logic or Dialectic, certainly, has had an unstable place due to the controversy over Ramism and later Academic in-fighting over Aristotle. Even in the Scottish Enlightenment period, though, the basic form of College with Rhetoric (Cicero) first, and Logic next, persisted. In other words, we have (or had) the Trivium right up until Latin and Greek were not taught in Colleges. 1750 or 1830 is hardly Medieval!

Now, the Quadrivium is certainly in need of an update. Keep your eyes on Traditio Nostra and you may see one, even!

Sunday, June 26, 2005

Jus Commune: Kelo Decision, Undiscussed Factors

The following factors seem to be mostly ignored in the discussions in blogdom:

1. By extending legislative deference down to the local level, the "public" in public use is being partitioned into small, conflicting pieces. Suppose a private company wishes to build a nuclear power plant on certain property and offers the owners a tempting price. The local government can decide the public interest would better be served by a wildlife preserve and prevent the sale. Legislative deference prevents courts from nullifying this legislative determination, and only higher legislative authority can intervene effectively. Only the paramount power of a higher government entity can be used to effect the original private transaction, so the net effect is to push the private sector into the hands of the government.

2. Kennedy's concurrence raises the issue of rational-basis.

'This Court has declared that a taking should be upheld as consistent with the Public Use Clause, U.S. Const., Amdt. 5., as long as it is “rationally related to a conceivable public purpose.” Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 241 (1984); see also Berman v. Parker, 348 U.S. 26 (1954). This deferential standard of review echoes the rational-basis test used to review economic regulation under the Due Process and Equal Protection Clauses, see, e.g., FCC v. Beach Communications, Inc., 508 U.S. 307, 313—314 (1993); Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955). The determination that a rational-basis standard of review is appropriate does not, however, alter the fact that transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause.'

Now we should not necessarily be upset that the Supreme court has decided to be "hands off" with the states (though in Hawaii Housing Authority v. Midkiff, an agrarian reform scheme that was affirmed mostly because the legislature wanted it, suggests some inconsistency here). More precisely, there is a tendency to defer to politically potent ends or "interesting use" (development, land reform) at the expense of mere boring private use. This would seem to be a principle of "most political excitement".

In any event, the court has backed itself into a corner: what exactly are the "rational-use" limits that might be placed on legislatures, deference aside. In other words, what laws *can't* the majority (or the potent oligarchy) enact?

Alas, FCC v. Beach Communications, Inc. tells us: "In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if any reasonably conceivable state of facts could provide a rational basis for the classification." I'm not sure what "suspect lines" may yield--if Property transfers are not suspect I'm not hopeful-- but "fundamental constitutional rights" though precious, are much less than Common Law or Civil Law--they do not include all my Civil rights, even.

This rational basis is what is extended (in the concurrence) to Public Use. But those are very thin restraints. One might *think* that Rationality would propose that transfering property from A to B cannot be rationally willed by a just legislature. Certainly, the language quoted in the dissents (who quote Justice Chase and Commentators Blackstone, and Kent) and above in our discussion from Blackstone, suggest that the Common Law aims at Rationality and must be presumed Rational by judges.

Our main issue here seems to be the futility of "rational-basis". If the judges think the Divine Law is not concurrent with and superior to rationality, and if they construe "rational" to include manifestly unjust acts, then "rational-basis" is meaningless. Whatever the legislature wants is rational because the legislature wants it. "Rights" are no longer secured by rational reasoning, but by paper guarantees, long since undermined. They are limited, in fact, to what the Cable TV ruling says: "fundamental constitutional rights" (as enumerated)

Net score: your rights are enumerated, and Divine Law and Rational Common Law are not among them, if the local or state legislature chooses. Your recourse is to petition paramount sovereign government for legislative relief.

Saturday, June 25, 2005

Jus Commune: Blackstone on Whether Bad Law is Law at All

Of course, Passive Obedience implies that it is possible for the Sovereign Authorities to make bad law. What, in the Tory view, is bad law, and what do we do about it? It turns out, the passage from Blackstone quoted below has been quoted by both the Supreme Court of Alabama, and the Supreme Court of the United States. In the the last case, the occasion was Scalia slamming an opinion by O'Conner. Are we going to have more of this?

"For it is an established rule to abide by former precedents, where the same points come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge's opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments: he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. Yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more if it be dearly contrary to the divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined. And hence it is that our lawyers are with justice so copious in their encomiums on the reason of the common law, that they tell us, that the law is the perfection of reason, that it always intends to conform thereto, and that what is not reason is not law. Not that the particular reason of every rule in the law can at this distance of time be always precisely assigned; but it is sufficient that there be nothing in the rule flatly contradictory to reason, and then the law will presume it to be well founded.[18] And it hath been an antient observation in the laws of England, that whenever a standing rule of law, of which the reason perhaps could not be remembered or discerned, hath been wantonly broken in upon by statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniences that have followed the innovation." Blackstone, Bk. I, Part I

Friday, June 24, 2005

Jus Commune: Feudalism in the Modern World

The question of eminent domain has been raised by the Supreme Court in the Kelo decision. Here is some commentary by Macrobius:

Jefferson felt that the writings and strategy of Coke (who in the early 17th century wrote the standard 4 vol. commentary ("Institutes") on Littleton's 15th century work on feudal Tenures) was key to opposing the absolutist claims of the Stuarts. His affection for Coke dated from his training as a law clerk, in which the method was to read Coke closely and apply his dicta daily to Virginia land disputes. If we remember Jefferson's agrarian leanings and predelictions a consistent picture emerges--what was important to [this one] Founder was not the constitution, but Common Law as applied to his country (Virginia).

The political strategy of the Revolution, from a propaganda standpoint, seems to be to take the current situation and map it onto the struggle against the Stuarts. This is brilliant, because it keeps Massachussetts [we hate kings anyway] obviously, but most importantly it gives Virginia a reason to stay in the game. As Zane says, Virginia should have been opposed to Parliamentary incursion, and not the King. Many Virginians were Torys and approved George III's "Tory Ascendancy" policy (a term that lived on in the South and Canada). Jefferson's master stroke is to tie his personal antipathy to the Hanoverians ("George Guelph" in the first draft of the declaration), to fear for property rights. This makes Virginia and Massachussetts allies in a "keep our rights and Common Law" Law-over-King struggle. Nevermind the king is halfway to Constitutional monarch and not in any real sense victimizing the colonies. Have we forgotten that Britain from 1688 to 1832 was a Protestant confessional state engaged in--far worse than witch trials--savage repression of Celts and Catholics?

It is quite an ugly picture, this Supreme Parliament. But of course the colonists in Massachussetts were onboard that program. Virginia, if unconfortable and inclined to tolerance, would support it in principle. So some other reason than "that country what ownz us violates natural rights and basically sucks" had to be found. Coke and the struggle against the Stuarts, transmigorified into two-minutes Hanoverian Hate does the job

Then it is critical that we understand: 1. what would the founding fathers have felt about feudal land tenure in the Republic 2. what are the salient issues at stake now? 3. How does this decision affect the status of land tenure today?

I have argued for centrality of "Land Tenure" (whence "Eminent Domain" and "Federal courts using Common Law" and similar notions hail)--incidentally in forming Jefferson's notion of "how to fight tyrrants" but also for other founding fathers. The year after the Constitution was ratified, Federalist James Wilson, soon to be on the Supreme Court though not Chief as he had hoped, gave a series of Lectures on Law--fully as authoritative as the Federalist Papers, only never read today and hardly available. But worth the read. Of feudal law he says, we no longer have to consider it applicable, as we can now prouldly say fuit servitudo (Fuit Ilium is the classical reference here). That is what the Revolution has done--ended that form of [white] slavery or the medieval form of serfdom, [not to mention the Catholicism that went with it].

I wonder if Jefferson and Wilson would have seen eye to eye. Nearly all the founding fathers were land speculators and not a few were shady ones. Perhaps there is a ray of hope yet for government by and for land developers. Developers of what, being the real issue of course. The Utilitarian metaphysics being the real demon here. And Bentham, like Bacon, was a lawyer.

Some more commentary:

"Sir John Dalrymple, author of a popular eighteenth-century essay on Feudal Property, is another example of a writer who considered feudalism praiseworthy, but denied that the Saxons practiced it. Saxon land tenure, he claimed, was allodial, and descents were free. The Germanic invaders of Britain had found more land than they could use and therefore felt under no constraint to accept feudal restrictions. The Saxon nobility was “allodial, personal, and honorary,” and was presided over by a virtually elective monarch." From Lamp of Experience.

So, we need a lawyer to tell us, is "eminent domain" (a feudal concept, non?) commensurate to the ideal of "allodial land holding"--and if the purpose of the revolution was to achieve the latter, how is that reconciled to subsequent use of the feudal concept? For the historians among us: Where and how did feudal land tenure like lords paramount, domains, much less eminent ones get back in the picture? And for the politicians: how is it that the South could be pro-Cavalier, Norman, and Feudal, yet join a Revolution on the basis of alloidal land vs. feudal? Or were there two Souths, one feudal, one free? A pretty historico-politico-legal puzzle.

What frame of rationality and justice should we use to interpret the Constitution?

Quotation from James Wilson.

Of law there are different kinds. All, however, may be arranged in two different classes. 1. Divine. 2. Human laws. The descriptive epithets employed denote, that the former have God, the latter, man, for their author.

The laws of God may be divided into the following species:

I. That law, the book of which we are neither able nor worthy to open. Of this law, the author and observer is God. He is a law to himself, as well as to all created things. This law we may name the "law eternal."

II. That law, which is made for angels and the spirits of the just made perfect. This may be called the "law celestial." This law, and the glorious state for which it is adapted, we see, at present, but darkly and as through a glass: but hereafter we shall see even as we are seen; and shall know even as we are known. From the wisdom and the goodness of the adorable Author and Preserver of the universe, we are justified in concluding, that the celestial and perfect state is governed, as all other things are, by his established laws. What those laws are, it is not yet given us to know; but on one truth we may rely with sure and certain confidence—those laws are wise and good. For another truth we have infallible authority—those laws are strictly obeyed: "In heaven his will is done."

III. That law, by which the irrational and inanimate parts of the creation are governed. The great Creator of all things has established general and fixed rules, according to which all the phenomena of the material universe are produced and regulated. These rules are usually denominated laws of nature. The science, which has those laws for its object, is distinguished by the name of natural philosophy. It is sometimes called, the philosophy of body. Of this science, there are numerous branches.

IV. That law, which God has made for man in his present state; that law, which is communicated to us by reason and conscience, the divine monitors within us, and by the sacred oracles, the divine monitors without us. This law has undergone several subdivisions, and has been known by distinct appellations, according to the different ways in which it has been promulgated, and the different objects which it respects.

To understand his distinction of "Natural Law" and "Rational Law" you will need to read Hooker.

[This is] the statement of the person primarily responsible for convincing Pennsylvania, the first large state, to adopt the Constitution, explaining that constitution to law students the year after it was adopted. In other words, I belong to a community whose educated members have articulated what they believe in terms that they at least rationally understand. We have, if you like, a world view and a closed mind, though better words are due to Adams, Jefferson, Wilson and their kith and kin. [...] That others less worthy have gained control of the court subsequently and choose to maintain forms without understanding or with contempt and malice for Intent and Tradition is beside the point--Tradition of one's own community, when as reasonable and properly articulated as that of the Constitution of the United States, is not beyond criticism but certainly meets the prima facie criteria of rational discussion, for those who care to engage the Tradition on its own terms, that is to say, Reality and Law of their own Community.

Wednesday, June 15, 2005

Beginners: Meet Sir Aminadab!

An Anglo-Latin Bilingual Dialogue in School

igitur, tu es asinus.

—St. Thomas Aquinas.

Now up offsite at Traditio Nostra