Sabbatical Blogging

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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7 Responses

  1. A.J. Sutter says:

    While looking for the sabbatical goldilocks might be more romantic, I think from your analogy you’re looking for the sabbatical porridge, yes? In either case, have a fun semester!

  2. I confess to being dispositionally disinclined to look with favor on the “situationist” literature, largely because I think it tends too much in the direction of absolving or diminishing moral responsibility or culpability for our behavior. And yet insofar as it helps us appreciate how circumstances and situations give rise to mitigating factors it may serve to make our moral lives less legalistic or mechanically rule-bound or untempered by considerations, say, of mercy or compassion (and thus in the interest of a wider or deeper conception of justice).

    Here’s one example, I think, of a situationist-like appreciation of circumstances (although not perhaps the sort of situation or scenario they themselves would invoke), courtesy of Larry May* in War Crimes and Just War (2007):

    “The situations of war and the institutions created during war, such as prisoner-of-war camps, change the normal moral situation. This is mainly because the circumstances of war make all of us into different people than we would be otherwise. Especially in the case of soldiers, these men and women become trained killers, when in their previous lives such behavior would have been anathema. In addition there is the instilled hatred and anger that cloud our judgment about the actions of others and what is their due for so acting….”

    May cites this change in moral situation as part of his argument for grounding international humanitarian law in a secular and “minimalist version” of natural law theory that is grounded, at bottom, on a principle of humane treatment (rather than the standard principles of discrimination, necessity and proportionality, which of course still have important roles to play as part of jus in bello considerations). Humane treatment relies, in turn, on various moral virtues and principles like honor, mercy and compassion that are part of fulfilling fiduciary or stewardship duties that arise in situations characterized by relations of dependency and vulnerability, as ofter arises in the circumstances of war.

    So, this is ONE way to appreciate the unique logic of moral situations and circumstances, yet I suspect avowed “situationists” would use this example to draw different moral and legal lessons, more along the lines of excusing or rationalizing, at least in some measure, the behavior of soldiers who, for instance, mistreat their captives or simply dehumanize their enemies in one way or another, owing to the deleterious psychological effects of circumstances on human behvior. One picture of moral psychology is enlisted on behalf of developmental potential or “perfectibilist” (which is not the same as ‘perfectionist’) capacities, whilst the other is used to highlight our darker motivational and cognitive proclivities in a more determinist manner, such that we become virtual creatures of circumstance and situation.

    This is of course a rather complicated topic that I’ve sketched in a preliminary and polemical way so as to highlight my distaste of the situationist trend among legal academics bewitched or enchanted by cognitive and experimental psychology. And I say this not so as to be dismissive of such psychology but rather that we attempt to look more closely at some of its presuppositions and assumptions from dissenting perspectives in the philosophy of mind literature, less “scientistic” forms of psychology (e.g., humanist, existential, even neo-Freudian), and a moral philosophy and ethics that doesn’t shy away from moral psychology (e.g., virtue ethics).

    *Larry May has recently written a remarkable series of volumes addressing the normative foundations of international criminal law that anyone with the slightest bit interest in the subject should read.

  3. Erratum, 3rd para.: “…as often occurs in the circumstances of war.”

  4. Orin Kerr says:

    I had my 1st sabbatical this spring. To the extent having just one sabbatical makes one all the wiser, here’s what I concluded:

    1) Everyone says it goes by really fast. True.
    2) It’s a good time to do that project you’ve always wanted to do but never had time to do. In my case, I ended up picking up a Fourth Amendment case in the 6th Circuit that I brief and will be arguing at some point this fall; I really enjoyed the experience.
    3) It’s a great time to watch all five seasons of LOST, free on the Internet. (Warning: That show is addictive.)
    4) I suspect the value in a sabbatical is as much getting excited about your projects again as it is getting stuff done. By the end I was pretty excited to get back to teaching and to engage with university life, so I thought the sabbatical was pretty successful.

  5. Dave Hoffman says:

    A.J.: It’s funny. I’ve used the goldilocks metaphor many times, never really thinking that I really meant porridge. The problem, I think, is that porridge has a vaguely negative and – dare I say it? – mushy connotation.

    Orin: #4 is a really, really great point. I’m done with #3 already, though I’m thinking of taking up “Breaking Bad.”

    Patrick: thanks for the comments. Putting aside the relativism issue, it seems to me that the project has a definitional problem (i.e., what counts as “the situation”, a problem that becomes more evident the more you read the blog). It’s also more conspiratorial, on a first read, than I would have expected. As I said, I think I need to read the whole corpus again.

  6. Dave,

    I agree on the definitional problem if only because so much is inferred about real-life “situations” from laboratory experiments.

    And as I’m thinking about my lecture today for Judaism, I realized how reflections on your sabbatical are, to some extent (i.e., without the same degree of intensity and rigor), the secular equivalent of rabbinic endeavors to fill out the meaning of shabbat (involving, in the first instance, a sanctification of time rather than space, although, to be sure, relatively empty space becomes filled with positive rituals)! Perhaps, therefore, it’s important to keep in mind that Shabbat (the Sabbath) is the most important of biblical festivals or holy days. It’s therefore also appropriate that you give due consideration of how much of your time is spent on “work!”

    In addition, as Michael Satlow reminds us, in the biblical narrative on the Sabbath, “There are no explanations for why or when God gave the Shabbat or how exactly to rest on it, and in the narrative [of Moses] the Israelites appear to be just as baffled as modern readers.” (The prohibition against conducting business, for example, does not appear until Isaiah.) Moreover, it’s probably safe to conclude, again with Satlow, that historically most Jews did not observe Shabbat “rabbinically” if by this means a preference for structured rabbinic schemes over and above observances grounded in local traditions. Finally, if Shabbat can be said to set the rhythm to the week, the sabbatical might be said to set the rhythm for the return to professional duties and obligations, and I suppose Orin’s story might be exemplary in this regard.

    Enjoy your sabbatical.

  7. A.J. Sutter says:

    Patrick has resolved the metaphorical aporia: Goldilocks is the Shabbat HaMalkah (Queen of Shabbes).