In the April issue of First Things, Gilbert Meilaender has a typically thoughtful (and beautifully written) review essay of Jeffrey Stout's recent book, "Talking Democracy." Stout's project, as Mailaender describes it, is to "steer . . . a middle way between Rawlsian social contract liberalism . . . and a 'new traditionalism', often religious in character and influenced by the work of Alasdair MacIntyre and Stanley Hauerwas." (Note: Meilaender concludes that Stout does not get MacIntyre or Hauerwas quite right). Hauerwas and the "new traditionalists", Stout argues, go too far in rejecting the Rawlsian "public reason" game, and are insufficiently appreciative of the possibility and importance of "democratic discussion."
There's a lot more, obviously, to Stout's book and to Meilaender's review. Both are recommended. The concluding paragraphs of the essay are, I think, particularly provocative:
"We might wonder whether the guiding image of this book—conversation—is not better suited as a characterization of academic than political life. Stout has drawn the image of conversation from Rorty, but its deeper source can be found in Michael Oakeshott’s discussion of the several voices in “the conversation of mankind” (though Rorty and Stout both eschew Oakeshott’s sense that philosophy is the search for what, as whole and complete, goes beyond any single voice in this conversation and seeks the coherence—at least in thought—of the whole). For Oakeshott, however, conversation characterizes not politics but the academy. Far from being a moral and spiritual association, politics is a realm of practice that concerns itself with the general arrangements necessary for a cooperative life among a group of people whom chance or choice have brought together.
Unlike politics—where decisions must be reached and goals pursued, where results count for a great deal—a university education provides the true image of an endless conversation. Such a conversation, Oakeshott writes, “does not need a chairman, it has no predetermined course, we do not ask what it is ‘for,’ and we do not judge its excellence by its conclusion; it has no conclusion, but is always put by for another day.” Captivating as this image is, much as we might wish it really characterized our own colleges and universities today, it cannot, of course, be adequate as a depiction of the rest of life—in which children must be raised, enemies confronted, goals pursued, and the Eternal (with whom one does not simply converse) confronted. Hence, writes Oakeshott, “the characteristic gift of a university is the gift of an interval.” It is not the whole of life, but a moment in life—and it is perhaps the characteristic vice of the academician (even if understandable for one whose life is spent fostering such an interval of conversation in the lives of his students) to try to extend it beyond its proper reach. Recognizing the lure of that, Oakeshott also sees that it cannot and should not be so extended. “It belongs to the character of an interim to come to an end; there is a time for everything and nothing should be prolonged beyond its time. The eternal undergraduate is a lost soul.” To miss this is more than a philosophical mistake; it is bad for democracy."
Rick
I recently wrote a article that explores the issue of the breakdown of communal values in a society that idealizes individualism and the free market. It's entitled Empire of Personal Desire: American Law and the Destruction of Communal Forms of Meaning. You can take a look at it by clicking on my name in the right hand column and going to my webpage.
I use the recent campaign to end forced heirship in Louisiana as an example of how American law and culture reject the implications of a strong notion of the communal identity of the family in the law, particulalry if such an identity limits individual control of property. Forced heirship prevents an individual from disinheriting his or her children, except in extremely limited circumstances, and it is a legal principle grounded in the recognition of a cultural norm of the indissoluability of the relationship between parent and child. Louisiana is the only state in the United States that followed this prinicple, which is common in civil law systems. Few legal systems on earth give parents the freedom to disinherit children that is found in American law. Of course, few cultures on earth grant individual autonomy and economic freedom the kind of blind obeisance that American culture does.
One of the reasons that Louisiana retained forced heirship is that it's legal system is still linked to portions of the French and Spanish civil code traditions. What I think makes this case interesting for Catholics is that it is also a state that, at least until recently, was not culturally Anglo-American. Indeed, the elites in particular were much more Catholic and Latin in their cultural outlook. These same elites have resisted the complete takeover of the common law in Louisiana, but their influence is fading. The base of support for the retention of forced heirship was traditionally in Catholic South Louisiana, where the idea of the family community resonates most strongly. As the state has become more "American" there has been intense pressure to "modernize" the law in order to give individuals more "freedom" to do "what they wish with their own."
The Catholic notion of a communally situated individual has ramifications for how we understand ourselves as members of couples, families, and communities; how we understand our roles as parents, children, and spouses; and how we understand our obligations to those around us. Permanent bonds to others often are not economically efficient or wealth maximizing. For many Americans, however (and certainly most American elites), economic freedom and wealth maximization are inseparable from unfettered individual freedom. More and more, becoming as rich as one can and being able to do whatever one wants are the foundational values of American civilization. But, as John Gray and others have noted, most socieities recongnize that there are tremendous human and social costs to this kind of liberalism.
This is one reason why more and more people around the world hate the United States and what it stands for. They see Americans as willing to sacrifice almost anything in service of the marketplance and our culture as embodying values that, if allowed to proliferate unchecked, will destroy the communal goods and institutions for which liberal free markets have no patience. Catholic social teaching takes these concerns seriously and therefore understands the market in a way that supports and strengthens the common good, as well as those institutions (such as the family) that nurture community. The economy is supposed to serve people, not the other way round.
Vince
Thursday, May 6, 2004
On Tuesday, I had the pleasure of speaking with the St. Thomas More Society at the University of Chicago's law school. Thanks very much to those students who attended, and also to Professor Philip Hamburger (whose recent study, Separation of Church and State, is essential to understanding the Catholic Charities case, and religious freedom in America more generally).
In my talk, I am afraid that I gave relatively short shrift to the many interesting doctrinal questions presented in the California Supreme Court's decision: How, exactly does the Court's Smith decision apply to laws that burden the religious exercise of groups (churches, associations, institutions, etc.), as opposed to laws that assertedly burden the free exercise or conscience of particular, discrete individuals? Should California's free-exercise clause be read to impose a more demanding standard on state action than that imposed by Smith? If the answer to this question is "yes" -- and the court was willing to assume that it is, for the same of argument -- then what should the "strict scrutiny" review required by such a standard look like? (In my view, the California court's purported application of "strict scrutiny" is quite un-strict). If -- as I think is the case -- the California court failed to appreciate the extent to which the law challenged in the Catholic Charities case was targeted specifically at Catholic institutions (and is therefore not "neutral", as Smith purports to require), is this failure a ground for criticizing the California court, or for criticizing the Supreme Court's decision in Lukumi, which appears to disapprove "discriminatory", though facially neutral, laws? And so on . . .
As several students pointed out (and as others have noted in correspondence with me), the Catholic Charities case puts me in a bind: One the one hand, I have been convinced that Smith is probably right (i.e., that the First Amendment is best understood as not requiring exemptions for religious believers from generally applicable laws). On the other, I regard both the decision by the California Court, and the California legislature's refusal to accommodate the objections and obligations of Catholic Charities, as deeply injurious to authentic religious freedom. Hmmmm.
Rick
Wednesday, May 5, 2004
In response to my post (below) on free markets and the breakdown of the traditional family, CUA Philosophy Professor Bradley Lewis (again) offers some valuable insight, as well as some good leads on resources for those interested in exploring the area more thoroughly. He writes:
I think the tension you indicate [between the market and the viability of the traditional family] is quite real. The philosophical origin of it seems to me relatively evident since the first cogent statements of the arguments for capitalism and the disposable family are found in the very same work, Locke's Second Treatise. The first and still most powerful argument for capitalism is in ch. 5 of the treatise, "On Property" (86 years before Smith); and Locke's discussion of marriage in ch. 7 argues that the only natural bond between husband and wife is the welfare of their children and that once the children have grown there is no "natural" reason for the parents to remain together if they do not wish it. Once individual choice is allowed to disolve the marriage bond, even in this limited case, it seems to me a relatively short distance to a much broader set of conditions under which marriage is defeasible. Indeed, the distance can be measured with some precision in the history of philosophy: 169 years separate the publication of Locke's Second Treatise and J.S. Mill's On Liberty, in the fifth chapter of which Mill argues for complete personal freedom to enter and leave relationships, including marriage--he explicitly criticizes the argument that people should remain together for the sake of their children.
Sociologically/institutionally, I suspect the nexus between capitalism and family breakdown has got to do with industrialism, since that literally broke up the family, i.e., the husband going off to work during the day (to the factory initially, later and for the upper classes, to the office). This was important not only because of the temptations that may face the husband away from his family, but because it eventually ends the independent economic value of the household as a productive enterprise. That leaves only emotional attachment, a very valuable thing, but also more fragile and subject to disruption. Also it is easier to later interpret it as simply determined by individual choice. . . . I have very little to say about how to solve all this, since the alternatives to liberal market societies that one can point to as real possibilitites today have little to recommend them. Nevertheless there still seems to be a responsibility to grapple with the problems.
For those interested in further grappling (as I certainly am), Professor Lewis recommends an essay by Wendell Berry, "The Body and the Earth," in The Unsettling of America, as well as There's No Place Like Work by Brian Robertson (Spence, 2000), and Wealth, Poverty and Human Destiny, edited by Doug Bandow and David L. Schindler (ISI Books, 2003).
Also, MoJ reader Matt Festa points out that free markets still employ a variety of incentives, and that those incentives can tilt toward or away from the traditional family's maintenance. For the past 30 to 40 years, Mr. Festa contends, the American incentive structure has tilted decidedly against marriage, as reflected in the "marriage tax," in welfare policies that effectively penalize recipients who decide to marry, and in our "no fault" divorce laws. He contends that, "It is entirely possible to keep our current open market economy and our traditional family values."
One of the core lessons of economics is that we live in a world of scarce resources. The tools of economics, in many respects, thus are designed to help us make the best possible choices as to how to allocate those resources among competing claims. When we turn to the large social issues and public policy questions to which CST addresses itself, however, we frequently fail to recognize that tough choices about resource allocation must be made. As Bjorn Lomborg observed in a WSJ ($) op-ed today:
Strangely, this basic concept has been almost absent in debate about one of the most important choices the world makes: how we spend money designed to improve living standards around the globe. This money is most obvious in overseas development and aid spending, but is also achieved through trade policies, the funding of research into diseases, investment in environmental protection, peacekeeping missions and maintaining the U.N. apparatus. The cash has often tended to follow the public's attention from disaster to catastrophe -- indeed, the "cause of the hour" changes as fast as the media can set up cameras in another hotspot. Today's fears about climate change are yesterday's concerns about overpopulation, and tomorrow's outcry for a response to famine. ...
In an ideal world, we would have the money and the political capital to do everything. We would be able to end malnutrition, illiteracy and refugee problems, halt climate change, stop global conflicts, and wipe out corruption. But we live in the real world, where we must focus our efforts to achieve even some of these things. We have a stark choice. We can continue to prioritize without acknowledging that we are doing it. Or, we can work out a rational framework for our spending that makes some more sense.
Towards that end Lomborg and the Economist have gathered 9 world-class economists to formulate the so-called
Copenhagen Consensus. (The Economist's coverage of the project is indexed
here.)
It is an interesting and worthwhile project. Yet, I am somewhat skeptical of asking economists to formulate priorities, as opposed to merely asking them to advise policymakers. One is reminded, for example, of Harry Truman's despreate cry for "a one-handed economist!"
More to the point, perhaps, one is reminded that the tools of economics are far better suited for determining whether a particular state of affairs is allocatively efficient than for deciding whether such a state achieves other important values cherished by CST, such as distributional justice, virtue, and the protection of all life. Granted, as Judge Richard Posner continues to assert, "[t]he great power of wealth maximization, and of economics generally, is in clarifying the costs and benefits of a proposed course of action, eliminating or at least reducing the element of factual uncertainty, and in that way minimizing, the area of genuine irreducible moral debate." Richard A. Posner, Rebuttal to Malloy, 24 Valpariso L. Rev. 183, 184 (1990). Yet, I take it that as Catholics we must insist on leaving room for allocative efficiency to be trumped by what Judge Guido Calabresi famously referred to as "Other Justice."
Here I take the liberty of paraphrasing Catholic public intellectual Paul Johnson’s defense of capitalism:
The divine plan was indeed that we should enjoy the fruits of the earth and of our own industry, and [wealth maximization] is the best way we have yet devised to organize the latter. But it was equally the divine plan that God should be worshiped and obeyed and, not least, feared. The fear of the Lord, in short, is the beginning of [economic] wisdom, as of any other kind.
Whether that balance is achievable by policymakers in a Fallen world, of course, is a separate question (and one I addressed with skepticism in my contribution to
Christian Perspectives on Legal Thought).
