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March 25, 2008


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Witness For The Prosecution

Let's take the above post Exhibit A in the case of People Who Know Something About Law v. The So-Called Legal Academy.

Isn't it a shame that law schools (such as ours) are falling all over themselves to attract faculty who have no formal training in law whatsoever?

No, you say?

Well, I say send the philosophers to the philosophy department at least. Maybe there they can debate whether the sodomite Mr. Lawrence committed his crimes against nature in KANSAS or Texas. Perhaps we are living in some weird alternative universe that only the philosophers understand.

If you, like, read some law you might, like, know the names of important cases.

Anonymous Bosch


I have heard that even lawyers occasionally misspeak or commit typographical errors. Personally, I don't believe it, but that's the rumor.


Such a boring, materialist, and totally unerotic account of social life. It's divorced from reality, like other rationalist fantasies such as Esperanto or "Socialism With a Human Face."

How about this reason for a law forbidding adultery or prostitution: normal people with a good moral center have found this behavior disgusting and anti-social since time immemorial until nihilist atheists such as Nussbaum, Freud, Marx, Jeremiah Wright, and company replaced the old value system with an angry, resentment-driven dogma of power ruined everything in the name of various popular "isms" of today, e.g., feminism, socialism, nationalism, globalism, etc.

PS The writing and thinking above and all the pieces on this subject are weak, sophistical, and profoundly wordy and uninteresting. I wrote more interesting things as a freshman in college. But ideology deadens the soul and the pen too, apparently.

Witness For The Prosecution

Yep, it is true.

But if I called "Lawrence v. Texas," "Lawrence v. Kansas" in a brief, I'd lose my job and be called an incompetent. People would say "How could you possibly make such a mistake? Don't you have any idea what you are talking about?"

Uzair Kayani

Hi Professor Nussbaum,

I have a couple of notes.

First, re prosecuting public officials under "bad laws":

I think that if anyone is prosecuted under "bad laws," public officials ought to be first in line- as a rule. People with less political power are likely to be disproportionately targeted by such laws (and usually are), and these laws can last for ages because no one important worries about them. Suppose, for example, that I had been prosecuted under the Mann Act. This fact would not get people talking. It may elicit a shrug.

Second, re sexual harassment laws:

It is unclear how Millean liberty counsels in favor of such laws. People do continue to have a choice: they could work there or work elsewhere. Even if there were no such laws, many businesses would discontinue such practices as a form of non-price competition (in the same way that firms advertise a generous parental leave policy, health plan, diversity, and so forth. People certainly do look at these factors in making employment decisions. Similarly, someone who required a harassment free environment could choose that job from the menu of choices she had. Someone else might think that sexual harassment doesn't bother her much, or that dealing with harassment is worth the benefit of quicker promotion etc. Why is this a bad thing?


hey roach,

how do we know when something we've been doing for hundreds of years is wrong (for instance slavery)? did 'normal people with a moral center' just change their minds?


Coming up next, OJ Simpson will be opining in a disinterested way about why laws regarding stalking, divorce, and DNA testing are unfair, racist, rooted in "animus," and, most ominously of all, "puritanical." He's just a neutral observer, the Juice. He has no stake in our collective moral judgment on this at all, just like all of the academics involved in this discussion.

Bill Clinton will be introducing OJ. Clinton's jsut another neutral, fair-minmded guy, just a man searching for truth in this topsy turvy world of ours.

(Jeff Skilling's discussion of Sarbanes-Oxley had to be cancelled due to other engagements.)


Anonymous, a good question with a long answer. The short answer, though, is the natural law tradition. It's not like conservatives have never argued for any change in society or that a particular practice was unjust. We have the ability to step outside of our tradition with reason, with revelation, with philosophy. Burke's Reflections, Aristotle's Politics, and Aquinas' Summa all read together are good on this.

This tradition, however, is quite distinct from the idea that we can make up ideas from whole cloth and solely based on reason and then judge societies by their conformity or deviance to an abstract, untested, and unmoored concept whether it is feminism or equality or democracy or whatever.

I wrote an essay on this once upon a time here:


Uzair Kayani

Hi Mr. Roach,

I think you contradict yourself.

(1) There is, in fact, no meaningful distinction between "step[ping] outside of our tradition with reason" and "solely based on reason . . . judg[ing] societies."

But if there is a difference between the two, as you suggest, then

(2) There is no necessary advantage to "disinterested" judgment: for example a person with no attachment to your tradition judges it "disinterestedly," but this doesn't seem to impress.

In short, it appears you support disinterested judgment in general, but not a disinterested judgment on a particular culture or moral center that appeals to you. Am I missing something?


It's quite different to be loyal to a society and one's family and to be "biased" in that sense, versus being loyal to a band of thieves or defined by your highly partisan account of adultery or some other immoral personal failing.

In other words, it's the difference between healthy sentiments in accord with both tradition, philosophy, right reason, and all the rest--what Aristotle might call "nous"--and mere instrumental reason in the service of base, low, and selfish motives.

If you think everything, howver, is just power and self-interest masquerading as right reason, morality and all the rest--as someone like Nussbaum does--then you would probably dismiss my distinction, one with merit in my opinion, as an "ideology" to "oppress" women, harlots, and all the rest.

Uzair Kayani

Hi Mr. Roach,

I'm still confused. Suppose my family is a band of thieves, or my society is fascist. How far does my loyalty run, and to what good? Suppose your society thought it ought to kill "fake philosophers" by offering them hemlock. Suppose these fake philosophers are corrupting the young by arguing that prostitution, or heresy, or pedophilia, is fine. We may be loyal to traditions insofar as they make sense, but we shouldn't assume they make sense just because we ought to be loyal to them.



Don't be such a smug f*ck. Are you really going to imply Martha Nussbaum hasn't read cases? I can assure you she's read more law than you. No, what our school needs is more of a liberal education approach to teaching law, not less. We need more philosophers, whether they are world famous or not.

What we desperately need less of is blind conservative corporate douchebags looking to make as much money as possible. And fewer white dudes who haven't lived a day in their life and cling to their delsuions of rational action and efficent markets, whether they be students or professors.

How much more satisfying and useful law school would have been had I got to take another legal philosophy class and not property.

Honestly, people like you remind me of why U of C law is such a profoundly miserable place. I should have gone to Berkeley.


Uzair, perhaps in law school you've heard of a "rebuttable presumption." Those interesting examples you cite are all exceptions to a general rule. I'm sorry I can't offer a handy-dandy slide-rule answer (like my libertarian and rationalist friends) because real life is sometimes complicated. That said, loyalty to one's own and respect for tradition are healthy and useful sentiments.

It's telling that most traditional societies honor the elderly and have great respect for experience, whereas America and the modern West makes a fetish of intelligence, as if some brilliant Diederot simply using his raw brainpower will sort out all of our problems. Speaking of Platonic dialogues, and along these lines, may I recommend the Euthyphro.

PS It's telling Socrates doesn't demand revolution or whine about his rights in the Apology. He had a sense of the tragic, including at times the incommensurability of obligations to the truth and to one's society. The Greeks were good at this sort of recognition.


Roach, Socrates also had some pretty bad reasoning to support his position. Sleep is only able to be appreciated if you wake up from it.

"Let us reflect in another way, and we shall see that there is great reason to hope that death is a good, for one of two things: - either death is a state of nothingness and utter unconsciousness, or, as men say, there is a change and migration of the soul from this world to another. Now if you suppose that there is no consciousness, but a sleep like the sleep of him who is undisturbed even by the sight of dreams, death will be an unspeakable gain. For if a person were to select the night in which his sleep was undisturbed even by dreams, and were to compare with this the other days and nights of his life, and then were to tell us how many days and nights he had passed in the course of his life better and more pleasantly than this one, I think that any man, I will not say a private man, but even the great king, will not find many such days or nights, when compared with the others. Now if death is like this, I say that to die is gain; for eternity is then only a single night."

If I was so off in thinking about death, I might not mind a death penalty myself.

XO provocateur

Guys at my high school paid prostitutes for sex all the time. It was no big deal.

To Roach:

Way to troll for Allan Bloom (R.I.P.), but it is a fact that the U.S.A. (nation of 1776 and of Gatsby) has no use for any world-view which emphasizes the tragic. Why do you hate democracy, freedom, and America?

This is ARE country!

Joan A. Conway

High schoolers paying for sex is very disturbing to me.

I was a late bloomer in this matter. And in addition, what dance did not exact from me as far as my psychic energy, college preparation studies and the Art Institute of Chicago did.

As well as a strong, but alcoholic punishing father, who thought nothing of resorting to his belt for behavior he wanted to curb, such as breaking windows with a baseball and saying Mom-a-mia!

My suggestion to XO provocateur is to reach inside yourself as to why so much time and money was spent on your high school's custom of prostitution: Were all young people debauched from their educational purpose in animalistic basic instincts? Did you have deep biological drives other than sex that were toward healthy goals. Why weren't you all goal-driven to something other than giving pleasure or receiving pleasure from sex?

I was under some pressure to engage in sex while playing kick-the-can in grade school, and in my building's hallway by a boyfriend, who gave me his ring, but the thought of the messy matter disgusted me at 17, of being overheard by other tenants, and of my mother being told of these sexual improprieties of fondling, while she worked and endured management pressure to quit her job with the unforeseen consequences of illness.

No I thought of my family in ways teenagers might benefit from at XO provocateur's high school.

Why so selfish and debased one might ask? Why are these about my needs for gratification? Were there not coaches available to steer talent into healthy lifestyles. Why brag about the sex trade as if it was a grown up thing to do? Why so much misplacement into being debauched? Was it rather like the idea of being grown up and able to smoke?

This is understandable and was basically society's fault, like alcoholic intake in the 60's that punctuated the hallmarks of our lives from WWII, perhaps beyond.

Buying and engaging in sex in high school is not Dagmar's experience with coffee in "I Remember Momma."

The working mother could no longer be home to control the activities of high schoolers, except for the leave it to beaver group.

I am sorry but I find this a very sad event in your high school days, and when you look back on it many years later it will not be a bragging point in my book.


Re: public officials and "bad laws." It's not for the people we pay to uphold and enforce the law to decide whether certain laws are good or bad. It would make me uncomfortable if they did, even if I personally disapproved of various "bad laws." There are plenty of jobs at the ACLU, so if you want to change the law, you shouldn't become a prosecutor. I see it as an issue of institutional competency and possible abuse of power. What if the shoe were on the other foot, professor Nussbaum -would you be comfortable with a born-again public official deciding that First Amendment jurisprudence on church and state is wrong and not worth enforcing?

Jon Rowe

How about this reason for a law forbidding adultery or prostitution: normal people with a good moral center have found this behavior disgusting.

Lol. Your use of the word "disgusting" borders on stupidity. Traditional societies have found prostitution and adultery to be immoral, not disgusting. Indeed, the social and often legal stigma against these behaviors were because these behaviors were so tempting to large sectors of the population.

BTW, it's obvious to anyone with an elementary understanding of philosophy that "normal people with a good moral center," defines as people with whose morals I agree.

barry m. dank

Professor Nussbaum ends up conflating sexual harassment and student professor consensual dating since in her terms such relationships may start up as consensual ones but “…may evolve in a way that puts undue pressure on the weaker party.” Such would be similar to arguing that heterosexual intercourse should be banned because some of the time it may end up in a rape situation. Or that marriage should be banned since ultimately it may put one party to a relationship being the weaker party. Such is often the case in a myriad of relationships. If one wants to regulate situations of sexual harassment one could do so without banning consensual relationships.

Of course, once these policies come into being it does not matter whether there is sexual harassment. Such is the case since a third party informant can then bring down the consenting couple and trump all concerns about privacy and consent. Professor Nussbaum is obviously naïve about such situations. On the other hand, she may look up to persons such as Linda Tripp when she informed on her “friend” Monica. Does Professor Nussbaum believe that such was a righteous informing since as a White House intern, Monica was the “weaker” party in the relationship?

Naivete also enters when Nussbaum states that Professor Lande’s future need not have been compromised in the context of his dating a particular student. She states: “He could simply have arranged things so that he did not supervise this particular graduate student’s work. That happens all the time.” I do not know that it happens all of the time, but I do know that it is not simple when it does happen. Terming this situation simple obscures the fact that almost always this involves the violation of the student’s privacy, and puts her educational fate in hands of professors and university bureaucrats who now see her as the girlfriend of so and so. Does Professor Nussbaum really think this situations helps the student?

Professor Nussbaum indicates that the aforementioned situation may be impossible

“and suppose Landes had indeed been deterred by the existence of such policies: then, as he says, “I would have been a big loser.” Nonetheless, as Landes himself acknowledges, it is still possible that the overall benefits of such policies (Landes mentions “reducing coercion by men”) exceed their costs.”

Well, it may not have been only Professor Landes who ends up being a big loser; the student could have ended up even being a bigger loser. And there is no escaping the coercion factor. In the Landes scenario both he and the student could very well end up being coerced by the university sexual police which may very well have no interest in civil liberties and due process and in their framework other legal niceties.

Jon Rowe

"Way to troll for Allan Bloom (R.I.P.),"

And there was a man who lived a kinky philosophers lifestyle if any did!


I am a bit puzzled why you single out Christians for attack with your references to "Puritanism", Ms Nussbaum.

American Puritans believed that sex was a gift from God and should be heartily enjoyed -- but only within the marriage relation.

This is fairly standard Judeo-Christian belief, certainly not peculiar to Puritans or Christians. Indeed, I suspect a quick poll of Jewish wives of your acquaintance would show they share the same belief.

There are differences, however. Christians, even in the Puritan era, were counseled not to stone prostitutes to death in accordance with Old Testament (Jewish/Mosaic) law. [John 8:7 - "let him who is without sin cast the first stone"].

Rather than twist Christian belief, Ms Nussbaum, it might be more honest (and certainly on territory more familiar to you as a Jew) if you mined your own religious and ethnic traditions and used them as examples of sexual repression. Just as blacks are free to use the "N" word, with little or no moral approbation you are certainly free to use your own people as an example. Perhaps "pharisaic sexual repression"?

I can almost hear your rejoinder: you don't really mean Christian "Puritans", per se, its just a convenient phrase that everyone understands as meaning sexually repressed, vindictive, judgmental and controlling.

If I may put the shoe on the other foot, I had a co-worker who similarly defended himself when I challenged him for saying someone "Jewed him down" in a negotiation. He also said he didn't mean anything against Jews, it was just a phrase that meant shrewd or tough bargaining.

If you will permit me, I will counsel you as I did him: if it promotes the stereotyping of another religious or ethnic group -- particularly a false stereotype -- one should eschew it.

Surely your argument deserves better support than that, Ms Nussbaum.

Jon Rowe

"There are differences, however. Christians, even in the Puritan era, were counseled not to stone prostitutes to death in accordance with Old Testament (Jewish/Mosaic) law. [John 8:7 - 'let him who is without sin cast the first stone']."

I'm pretty certain this is wrong. If you've read the Mass. body of liberties -- what a Christian civil code looked like before the Enlightenment and Church & State were separated -- you see an American Talibanic code. Don't believe me? Check it out for yourself:
"94. Capitall Laws.

(Deut. 13. 6, 10. Deut. 17. 2, 6. Ex. 22.20)
If any man after legall conviction shall have or worship any other god, but the lord god, he shall be put to death.

(Ex. 22. 18. Lev. 20. 27. Dut. 18. 10.)
If any man or woeman be a witch, (that is hath or consulteth with a familiar spirit,) They shall be put to death.

(Lev. 24. 15,16.)
If any person shall Blaspheme the name of god, the father, Sonne or Holie Ghost, with direct, expresse, presumptuous or high handed blasphemie, or shall curse god in the like manner, he shall be put to death."


Jon Rowe

My research shows that in principle, the ideals that America's key Founders put forth greatly broke with the Puritan past (hence were anti-traditional). Yet, where Burke comes into the picture -- the American system didn't try to sweep the past away ala the French and remake society at once in accord with its Enlightenment ideas. Religion was initially left to the states with the HOPES (and those hopes turned out to be true) that they'd, over time, enlighten, liberalize and reform.

But just to give an example between the tension of America's Founding and its "Planting" (the "Planting" was its old colonial order, the "Founding" what took place between 1776-1800), John Adams would have been executed for the things he said about the Christian religion in his private letters under the laws of colonial Puritan Mass (as of course would Jefferson, Franklin, Paine, and many others) just as Servetus was in Calvin's Geneva for his unitarian heresy.

"The Trinity was carried in a general council by one vote against a quaternity; the Virgin Mary lost an equality with the Father, Son, and Spirit only by a single suffrage."

-- John Adams to Benjamin Rush, June 12, 1812.


"An incarnate God!!! An eternal, self-existent, omnipresent omniscient Author of this stupendous Universe, suffering on a Cross!!! My Soul starts with horror, at the Idea, and it has stupified the Christian World. It has been the Source of almost all of the Corruptions of Christianity."

-- John Adams to John Quincy Adams, March 28, 1816


"If I understand the Doctrine, it is, that if God the first second or third or all three together are united with or in a Man, the whole Animal becomes a God and his Mother is the Mother of God.

"It grieves me: it shocks me to write in this stile upon a subject the most adorable that any finite Intelligence can contemplate or embrace: but if ever Mankind are to be superior to the Brutes, sacerdotal Impostures must be exposed."

-- John Adams to Francis van der Kemp, October 23, 1816.


The Purtians were hardcore, Rowe, no doubt, but then again you and esteemed philosophy professor Martha Nussbaum are basicaly saying in a wordy and evasive style that all standards are Puritanism. It is litte more than the nihilistic credo that The Dude (of Big Lebowski fame) said very elegantly: "That's just like your opinion man."

Of course, we shouldn't forget Walter Sopcheck's call to courage in the face of such people:

Donny: Are these the Nazis, Walter?

Walter Sobchak: No, Donny, these men are nihilists, there's nothing to be afraid of.

Anonymous Bosch

Nice marmot, Roach. :-)

Would it be accurate to say that one of Walter's other gems sums up your views on the matter?:

"Say what you will about the tenets of National Socialism, Dude, at least it's an ethos."

(Is there a corollary of Godwin's Law that applies to the deployment of Big Lebowski quotes about Nazis?)

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