Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, January 13, 2005

The Right to Privacy - A Response

Yesterday Rob asked "where exactly does the right to privacy's development deviate from the Catholic worldview?"  I look forward to hearing the responses of others (bloggers and readers).

My own response is multi-layered.  At a separation of powers level, I would suggest that the Court has deviated from a Catholic worldview by creating a constitutional right to privacy in "interpreting" a Constitution that does not have one.  A Catholic worldview respects the authority of various offices of power, and it seems to me that the Court in creating a right to privacy has failed to respect the authority of the people of the United States to speak through their legislators.  In short, the Court has exceeded its authority from my judicial minimilist perspective.  The Meyer and Pierce opinions appeal to me, and I would like to find a way to reconcile them with my understanding of the judiciary, but to date I have not been successful.

At a prudential level, only Roe and the other abortion cases deviate from a Catholic worldview.  Lawmakers may decide that prudence dictates that the state not use its police powers to outlaw contraceptive use (for married couples or even unmarried individuals) or homosexual sodomy, leaving individuals as free moral agents responsible for their own moral development.  A state is not free, however, to license free moral agents to intentionally kill innocent human life.

At an anthropological level, I would suggest that Griswold, Eisenstadt, Lawrence, and the abortions cases all deviate from a Catholic worldview.  Griswold may be shrouded in language about the sacredness of the marital relationship, but its anthropology, which came to light in Eisenstadt, has been fully exposed in Casey and Lawrence, especially in the mystery passage.  This radical autonomy of self-creation is fundamentally at odds with a Catholic worldview.  As I have argued in Sex, Marriage, and Procreation:  The Judicial Decimation of American Family Law, Lawrence (and Goodridge) are logical extensions of Griswold.

Michael S.

Wednesday, January 12, 2005

The Right to Privacy

This semester I'm teaching Family Law, and today I devoted the first class to tracing the development of the right to privacy in the context of human relationships.  When viewed as a seamless line of cases (Meyer - Pierce - Griswold - Eisenstadt - Roe - Lawrence, among others) it becomes tempting to embrace the development as a logical unfolding of family and individual autonomy.  I assume that most champions of the moral anthropology applaud the holdings of Meyer (state can't forbid teaching of foreign language) and Pierce (state can't require public education), especially their framing of parental obligations and duties in terms of natural rights.  Even Griswold is grounded in a conception of the marital relationship as sacred, requiring its own sphere of autonomy against state interference.  The right to privacy, in many respects, is entirely consistent with the system of limited government / mediating structures envisioned by Catholic social thought. 

So I have a question for co-bloggers and readers who may have devoted more thought to this area than I have: where exactly does the right to privacy's development deviate from the Catholic worldview?  Is it Eisenstadt's disconnect of privacy from traditional family relationships?  Or is it not until Roe elevates privacy over competing claims of personhood from another living being?  Or is there a problem with the right to privacy itself?

Rob

Trinitarian Products Theory

I have just posted under my name at the side an essay which was published in the Villanova Journal of Catholic Social Thought together with the other papers from the October 2003 Symposium on Catholic Social Thought & the Law. The abstract is below. As I am currently working on its sequel for the March 2005 Gaudium et Spes conference in the Vatican, I would be most grateful for comments and especially for critique.

ABSTRACT:

Amelia J. Uelmen, Toward a Trinitarian Theory of Products Liability, 1 J. Catholic Social Thought 603-645 (2004)

At a time when law school curriculums are heavily sprinkled with “Law &” seminars that explore the rich connections between legal theory and the most varied social sciences and arts, and given that the texts of Catholic Social Thought are pregnant with a profound and multi-layered social critique, it would seem that its robust integration with jurisprudence is long overdue. Among legal specializations, several obvious candidates for integration leap to mind.

In the list of obvious candidates, however, many might not include products liability. How would such seemingly technical and scientific standards for the production of material goods intersect with Catholic Social Thought? Similarly, no one would be surprised that legal theorists have not yet identified the deeply mysterious theological doctrine of the Trinity as a lens for products liability analysis.

Yet spurred on by the conviction that Catholic Social Thought can offer profound solutions to the knottiest dilemmas in products theory, and encouraged by William Stuntz’s recent challenge to move beyond the “ordinary” and “conventional” in order to probe the depths of the unique resources that Christian theology may offer to legal theory, this essay sets out a few initial ideas as a first step toward a “Trinitarian” theory of products liability.

The essay begins with a brief outline of some of the overarching themes in products liability, and a story that illustrates what could be considered one of the principal tensions: the profound disconnect between how economic analysts and ordinary citizens who make up civil juries define the standard for a “reasonably designed” product.

The second section aims to show that the philosophical and analytical framework of Catholic Social Thought can do much to help flesh out the critique of predominant products liability theories largely influenced by economic analyses.

The final sections move beyond critique to consider what a relatively new current of thought in Catholic theology that sets out the Trinity as a model for social life might offer to products liability theory. Specifically, it considers two hotly debated areas in products theory—the role of cost-benefit analysis, and the Third Restatement’s recent formulation of the definition of a defective product—to test whether Catholic Social Thought viewed through a “Trinitarian” lens might promise creative solutions.

Bibliographies for Catholic (and more broadly Christian) Legal Scholarship

Students doing research at the intersection of law and Christian thought might be interested in the two bibliographies linked on the left hand column of this page.

Integral Formation of the Human Person

As we begin another semester, I thought Prof. Izaguirre's essay entitled "The Urgency of an Integral Formation" might be of interest to students and faculty alike. 

"Four Urgent Challenges"

During his traditional State of the World address to the ambassadors of the 174 countries having full diplomatic relations witht he Holy See, Pope John Paul II highlighted the four urgent challenges now facing humanity today: the challenge to life, the challenge to provide food to the hungry, the challenge to bring peace and the challenge of freedom.  A Zenit summary of his address can be accessed here, and the full text here.

Susan

Tuesday, January 11, 2005

PRAY

Back in October I posted a short tribute to my stepfather; the conclusion mentioned a sign he had made:

A couple of days after Bob died, I was cleaning out his truck and found his old, beat-up lunch cooler. Inside the cooler's lid, he had taped a piece of paper on which he had written the word "PRAY" in big letters. Whenever he opened the cooler, he saw that sign. Bob would not have had much to add to the discussions on Mirror of Justice, but his hand-lettered sign looms large as I contemplate the integration of faith with my intellectual pursuits. If I'm simply trying to sound more clever than the next person or using my God-given ability to grasp for more and more academic prestige, I've missed the point. The intellectual exploration of faith cannot be mistaken for the life of faith. Thanks, Bob.

A reader requested a copy of the sign.  As we begin a new year on Mirror of Justice, I figure it wouldn't hurt to have a visible reminder of Bob's lesson:

P2030091_1

Monday, January 10, 2005

Sweden and Economic Freedom

Thanks to Michael for posting the interesting article comparing the state of things in the United Kingdom and Sweden.  I note, by way of friendly amendment to the arguments advanced by the author of the article that, according to the 2005 Index of Economic Freedom (link), which was put out by the "neo-liberal" (or, perhaps, neo-conservative?) Heritage Foundation, Sweden is one of the "freest" countries in the world (14th, just behind the United States).  It strikes me as not quite right, then, for the author of the piece to suggest, as he does, that Sweden's solid performance in a number of economic and social categories tells us much about how countries that pursue economic and social policies dramatically different from the UK's (or the USA's) fare in terms of controlling poverty.  (Sweden is also, I suppose, one of the more "secular", and certainly one of the more ethnically and culturally homogenous, of the "developed" nations -- two characteristics that might make it less useful as a model for American thinkers).

Rick

Something for Catholic social theorists to think about?

Sweden proves neoliberals wrong about how to slash poverty
George Monbiot
Tuesday January 11, 2005

Guardian

'Does not already the response to the massive tidal wave in south-east Asia," Gordon Brown asked on Thursday, "show just how closely and irrevocably bound together... are the fortunes of the richest persons in the richest country to the fate of the poorest persons in the poorest country?"

The answer is no. It is true that the very rich might feel sorry for the very poor, and that some of them have responded generously to the latest catastrophe. But it is hard to imagine how the fate and fortunes of the richest and poorest could be further removed. The 10 richest people on earth have a combined net worth of $255bn - roughly 60% of the income of sub-Saharan Africa. The world's 500 richest people have more money than the total annual earnings of the poorest 3 billion.

This issue - of global inequality - was not mentioned in either Brown's speech or Tony Blair's simultaneous press conference. Indeed, I have so far failed to find a reference to it in the recent speeches of any leader of a G8 nation. I believe that the concern evinced by Blair and Brown for the world's poor is genuine. I believe that they mean it when they say they will put the poor at the top of the agenda for the G8 summit in July. The problem is that their concern for the poor ends where their concern for the rich begins.

There is, at the moment, a furious debate among economists about whether global inequality is rising or falling. No one disputes that there is a staggering gulf between rich and poor, which has survived decades of global economic growth. But what the neoliberals - who promote unregulated global capitalism - tell us is that there is no conflict between the whims of the wealthy and the needs of the wretched. The Economist magazine, for example, argues that the more freedom you give the rich, the better off the poor will be. Without restraints, the rich have a more powerful incentive to generate global growth, and this growth becomes "the rising tide that lifts all boats". Countries which intervene in the market with "punitive taxes, grandiose programmes of public spending, and all the other apparatus of applied economic justice" condemn their people to remain poor. A zeal for justice does "nothing but harm".

Now it may be true that global growth, however poorly distributed, is slowly lifting everyone off the mud. Unfortunately we have no way of telling, as the only current set of comprehensive figures on global poverty is - as researchers at Columbia University have shown - so methodologically flawed as to be useless.

But there is another means of testing the neoliberals' hypothesis, which is to compare the performance of nations which have taken different routes to development. The neoliberals dismiss the problems faced by developing countries as "growing pains", so let's look at the closest thing we have to a final result. Let's take two countries which have gone all the way through the development process and arrived in the promised land of prosperity. Let's compare the United Kingdom - a pioneer of neoliberalism - and Sweden, one of the last outposts of distributionism. And let's make use of a set of statistics the Economist is unlikely to dispute: those contained within its own publication, the 2005 World in Figures.

The first surprise, for anyone who has swallowed the stories about our unrivalled economic dynamism, is that, in terms of gross domestic product, Sweden has done as well as we have. In 2002 its GDP per capita was $27,310, and the UK's was $26,240. This is no blip. In only seven years between 1960 and 2001 did Sweden's per capita GDP fall behind the UK's.

More surprisingly still, Sweden has a current account surplus of $10bn and the UK a deficit of $26bn. Even by the neoliberals' favourite measures, Sweden wins: it has a lower inflation rate than ours, higher "global competitiveness" and a higher ranking for "business creativity and research".

In terms of human welfare, there is no competition. According to the quality of life measure published by the Economist (the "human development index") Sweden ranks third in the world, the UK 11th. Sweden has the world's third highest life expectancy, the UK the 29th. In Sweden, there are 74 telephone lines and 62 computers per hundred people; in the UK just 59 and 41.

[There's more.  Click here.   mp]

Fish on Religion in the Academy

In the Chronicle of Higher Education, Stanley Fish has an essay titled "One University Under God?"  Here's the thrust of the piece:

When Jacques Derrida died I was called by a reporter who wanted know what would succeed high theory and the triumvirate of race, gender, and class as the center of intellectual energy in the academy. I answered like a shot: religion.

(Thanks to CT for the lead.)

Rob