When Judge Frank Johnson held that the rights of the Selma marchers would be commensurate with the constitutional wrongs that had been inflicted, he was taking a legal theory more often used in criminal cases--proportionality--and applying it in a new context.
Impeccably fair-minded legal scholar Eric Muller proposes to take a different theory from the criminal law and apply it even more creatively, taking it out of the courtroom altogether. When it comes to "judging our ancestors," he suggests that we consider the "cultural defense," a latter-day doctrine "in which an accused from a foreign culture contends that he should not be held accountable here for an act that was permissible, or at least tolerated, under his foreign cultural's legal, ethical, or social norms." Just as the law has evolved to take cultural defenses into account when judging the culpability of a person who has come from another place, Eric asks us to take them into account when we judge actors from another time.
Contrary to some of the comments generated here, the point of Eric's project is to deepen the complexities involved in such an analysis, not to simplify or flatten them out. Once you recognize the difference between your own moral standard and that of the world in which the historical actor lived, you look to the facts to try to figure out how much real choice the actor had. And then even if you decide that there were alternative ways of thinking to which the actor had access, you still might dig deeper to see if there was something particular to the person's circumstance that would reasonably explain why they acted as they did.
This kind of analysis is helpful in thinking about that woman who's caused so much trouble of late at UNC, Cornelia Phillips Spencer.
The argument that she was "simply a product of her time" rings hollow when you consider her brother, Samuel Field Phillips. Phillips was a distinguished Chapel Hill attorney and public servant who prosecuted the KKK and, for his pains, was run out of the state. He served for 12 years as solicitor general under successive Republican presidents. Later, he worked with Albion Tourgée on Homer Plessy's case.
So to Eric's question of the chosenness of Spencer's actions in so vigorously defending the conserative establishment, she certainly was aware of alternative responses; she had a choice, and she made it. But that's not the end of the story. Eric next asks us to look at "the position of the wrongdoer." "Those who seek out or inherit positions of influence and prominence bear special responsibility for those practices because they set an example for others and are in a position to effect change." Spencer was part of the ruling class, and thus you might say she is in this category of the especially guilty. But she was a woman, a widow and a mother who for cultural reasons was dependent upon the men around her for her comfort and livelihood. Was she one of a long line of upper-class women who've accommodated patriarchal desires because it was in their immediate best interest? And if so, does that excuse her?
These are difficult questions, but compared to the usual questions they yield much richer and more interesting responses. Eric has done us a service by proposing such a subtle, dare I say nuanced (all scholarship aspires to nuance, and sometimes it succeeds), way of approaching the work of judging our ancestors.