Note: This post is dedicated to the memory of my colleague and kindred spirit Carlos “Carlitos” del Valle, who the world lost on Saturday, July 11, 2020. I am also dedicating this post to all the people who were lucky enough to count Carlitos as a friend.
Earlier this week, I described two of my previous collaborations with my friend, colleague, and mentor Carlitos del Valle, beginning with the time we unwittingly co-authored a Supreme Court amicus brief together in 2004 and proceeding with our first fateful exchange of ideas in person in 2007. Among other things, Carlitos rekindled my love affair with chess and reminded me of the singular importance of stare decisis. But my most significant memory of Carlitos began with a simple question that our mutual friend and colleague Daniel Nina posed during a colloquium in Mayaguez, P.R. in the spring of 2007, a question that continues to haunt me to this day.
As I mentioned in my previous post, this 2007 colloquium was the most memorable conference I have ever attended. It was devoted to the law and ethics of the fictional world depicted in the 1982 movie Blade Runner, and one of the many themes in this beautiful science fiction film noir is the law and ethics of violence. The dystopian world of Blade Runner is a physically violent domain. A band of advanced “off-colony” Nexus-6 replicants–flesh-and-blood automatons who are “more human than human”–resort to physical violence and threats of violence throughout the entire movie in a futile effort to extend their fleeting four-year lifespans, and the police have hired a special agent, Rick Deckard, to track down the illegal replicants. Deckard, a “blade runner” and quite possibly (spoiler alert!) a replicant himself, is lawfully authorized to capture and kill his fellow replicants.
With this background in mind, here is the poignant question that Professor Nina posed to us during the colloquium: when, if ever, is violence legally or even morally justified? Given the subject of the colloquium, this was not a mere rhetorical question, and Nina did not just let it hang in the air. He posed his question directly to every attendee, and he demanded an answer. I have since devoted several of my scholarly papers to Nina’s question and to the problem of violence and its relation to law generally, beginning with my 2011 paper “Life, Love, and Law“–a paper, by the way, that I dedicated to Carlitos himself. Later, I wrote a chapter (“Buy or Bite?“) for the 2014 book Economics of the Undead, where I explain why vampires must resort to violence to obtain their supplies of blood. (My answer, in two words, is “legal failure,” i.e. our unwillingness to legalize the sale of blood!) More recently, my 2019 paper “Domestic Constitutional Violence” explores the legality of President Dwight Eisenhower’s reluctant use of military force to enforce school desegregation in Little Rock.
But the larger point I want to make here is that all of these papers were in some shape or form inspired by Carlitos’ principled reply to Professor Nina’s colloquium question and by his passionate defense of the principle of non-violence. While all of our colleagues (including myself!), taking our perverse consequentialist theories to their logical conclusion, were more than willing to countenance the use of violence under certain narrow conditions (e.g. to fight apartheid or topple a corrupt regime), Carlitos’s resolute commitment to non-violence remained unwavering throughout our often-heated discussions. To the point, Carlitos’s Kantian moral compass eventually won me over. He changed my mind, and I will never forget that …