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.

Wednesday, February 9, 2005

The Value of Catholic Legal Thought: Means vs. Ends

Steve asks whether we gain anything by viewing legal questions through the lens of Catholic social thought given that the range of resulting perspectives often seems to mirror the views held by those who do not bother with the CST lens in the first place. In other words, does the "Catholic legal theory" label simply provide a noble cover slogan for debates that, at their essence, can be found throughout the surrounding legal culture?

With this past election cycle still fresh in our minds, it is difficult to deny that CST sometimes seems uniquely malleable, especially when it comes to economic issues (unlike abortion, for example). I do think that, even in the economic realm, CST has a substantive spine that separates it from at least some of its competing worldviews. The key is to distinguish between means and ends. CST does not prescribe a single economic path for the modern world, but it does assert unmistakably that any chosen path must be aimed at an economic reality in which the dignity of the human person is honored. One obvious implication of this assertion is the preferential option for the poor. If someone is serious about integrating CST with economic theory, the plight of the poor must be front and center. Does this mean that the Bainbridge-Novak-Sirico approach to economics is out of step with CST? No, but it means that they must show how their approach benefits the poor, not as an afterthought, but as a primary determinant of the approach's compatibility with the Church's teaching. The same holds, of course, for those who favor a welfare state approach.

This may be an obvious attribute of CST, but I think we lose track of how distinctive it is. It also helps explain why there traditionally has tended to be resistance among proponents of CST to an economic theory grounded in tax cuts. I've never heard Reagan or Bush II lead off a tax cut speech with "We're cutting taxes to help the poor!" They might insist that the poor will benefit, but tax cuts are defended as essential to helping the taxpayer. Their impact on the poor is of secondary concern. I'm not saying that tax cuts will never help the poor -- certainly there's a case to be made, especially if the cuts trigger job creation, etc. My only point is that the impact on the poor must be central to economic policy if the vision laid out by CST is to be taken seriously. The means by which the poor can best be helped should be debated with vigor, but the plight of the poor as a foundational concern of economic policy is non-negotiable.

So if we focus only on the "how," then perhaps CST does not add much to our legal debates, as the Church does not claim to have a monopoly on technique. But if we keep in mind the "why," then we will enter the debates of our time from an entirely different angle, and Catholic legal thought will develop in a way that is counter-cultural, even revolutionary.

Rob

Ruminations on "Catholic Legal Thought" Prompted by Thoughts on Marx and CST

At a conference over the weekend, I had what one observer referred to as a "full and frank" discussion of the intellectual roots of Catholic social thought with esteemed Catholic legal scholar Tom Shaffer. As I understood Tom's claim, he argued that CST is basically Marxist in origin because it accepts virtually all of Marx's core principals excepting only such things as the claim that religion is the opiate of the masses and so on.

I will concede that elements of CST were infused with a Marxist sensibility during the heyday of liberation theology, of course, but I rather forcefully rejected Tom's apparent view that the key documents - especially the foundation stone laid by Rerum Novarum should be understood as even quasi-Marxist documents.

In doing some subsequent research on the subject, I found a very interesting essay on the historical roots of CST by Father Robert Sirico. Fr. Sirico concludes that:

Taken as a whole, and read in the context of its historical setting, Rerum Novarum provides one of the most finely honed defenses of the free market and private property order in the annals of Catholic, indeed Christian, social thought up until the appearance of Centesimus Annus, which expands Leo's notion of property beyond land ownership, to include "the possession of know-how, technology and skill." (#32)

I suspect our friend and leader Mark Sargent would add Sirico to his list of CST outliers, which as well all know includes myself and Michael Novak (at least I'm in very good company!). Yet, I thought Sirico's essay makes a very strong case that the key documents of CST in fact can be squared with a classical liberal understanding of the roles of the state and the economy. More precisely, Sirico claims:

Articulating a classically liberal view of the social crisis is obviously not what Leo had in mind when he wrote his encyclical. Yet, I would contend that classical liberal thought is at least as much in the tradition of Rerum Novarum as is the collectivist interpretation it has historically received.

Indeed, the standard interpretation given Rerum Novarum in many circles has obfuscated much of what is authentically liberal in Catholic social thought. Unfortunately, the interpretations of certain theorists have so dominated discussions on what is the proper Christian response to social, political, and economic calamities or injustices, that any classical liberal interpretation of contemporary injustices is greeted as naive, insensitive, or even heretical.

Perhaps it is precisely because CST is capable of both such an interpretation and that given it by Tom Shaffer that we end up, as Mark Sargent put it at the conference, back where we started from. In other words, it perhaps is not surprising that putting ideas through what Mark calls the "Catholic wringer" leads us back to the same place we would arrive using wholly secular precepts.

This line of analysis may call into question the enterprise to which the Mirror of Justice blog is devoted; namely, is it worth trying to figure out what a distinctively Catholic legal thought looks lie? Is CST and Catholicism generally such a big tent that there inevitably will be multiple legitimate Catholic perspectives on legal questions? If so, what do we add to the debate by invoking CST other than perhaps very useful end of insisting that faith-based discourse has a legitimate role in the public square?

Mark's remarks at the conference last Saturday raised very similar questions. (I hope Mark will print those remarks up for the blog and/or publication, as they were quite provocative.) Our post-speeches panel discussion further explored some of them. Because I'm genuinely curious about these issues, I now pose these questions to the rest of our fellow Mirror of Justice bloggers.

It would have been an honor just to have been nominated ....

Neither ProfessorBainbridge.com nor Mirror of Justice are nominated in any of the categories for the Catholic Blog of the Year Awards. It's a moral outrage, of course! One of my favorite blogs, Southern Appeal, is in the running for political blog, although it will get more than just a run for its money from Mark Shea's fine blog. Of course, Shea's on hiatus, which presumably will help SA. Plus Shea's also nominated in the best blog by a man category, while SA is also nominated in the best social commentary category, so loyal readers of both can support both in different polls. (Both are pretty conservative, so your mileage may well vary.)

Tuesday, February 8, 2005

Religious Lawyering in a Liberal Democracy

I have just posted a few pieces at the sidebar which address many of our issues.  Religious Lawyering in a Liberal Democracy: A Challenge and an Invitation, co-authored with my colleague and the founder of Fordham's Institute on Religion, Law & Lawyer's Work, Russ Pearce, sets out a brief history of the “religious lawyering” movement, describes the positive contribution it brings to the legal profession, and addresses some of the challenges it poses for a culture of professionalism.  Your thoughts and critique most welcome!  Also up are the brief remarks from the Guild of Catholic Lawyers of the Archdiocese of New York Charles Carroll Award reception last week.  The room was full of hope for bringing ahead the kind of conversation we are working on, thanks to the presence of folks like Susan Stabile and Rob Vischer.  I have also posted a piece just out in Logos, the Journal of Catholic Thought and Culture published out of the University of St. Thomas - its a brief biography of Focolare founder Chiara Lubich, with some background on her approach to inter-religious dialogue.  Enjoy!  Amy 

Balkin on Same-Sex Marriage

Yale Law School's Professor Jack Balkin has posted a lengthy discussion and examination of several different "constitutional theories of same sex marriage," including "sex equality", "sexual orientation discrimination", "irrational discrimination", the no-laws-based-on-"animus" rule of Romer v. Evans, and the "fundamental due process right to marry."  Balkin evidently prefers -- or, at least, finds most plausible and likely to succeed -- the first two arguments.

Rick

Will (Should) the Pope Resign?

Vatican watchers, who resemble no one quite so much as the old Kremlinolgists in their ability to spin elaborate theories from virtually no hard evidence, are all attitter over remarks by the Vatican Secretary of State on the Pope's health. The Times of London, for example, ran the story under a headline reading:

Pope should think of resigning, says Vatican cardinal

In fact, however, as the story makes clear, the Cardinal said no such thing:

Asked whether the Pope, 84, should step down as his illness worsens, Cardinal Angelo Sodano, the Secretary of State (Prime Minister), himself the Pope’s deputy and a potential successor, said that the decision should be “left to the conscience of the Pope”. He added: “We should have faith in him. If there is one man who knows what to do, it is he.”

In other words, in response to a direct question, the Cardinal basically said "it's up to the Pope."

My guess is that some commentators are engaging more in wishful thinking rather than reasoned analysis. I doubt very much that this Pope will step down while he lives. For one thing, it hasn't been done in over 700 years. For another, this Pope's current health struggles are a living witness to the meaning of the Gospel of Life. As John Paul has taught:

"Suffering - as I wrote in the Apostolic Letter Salvifici Doloris - can be transformed and changed with a grace which is not exterior but interior…yet this interior process does not always develop in the same way…Christ responds neither directly nor abstractly to human questioning about the meaning of suffering. Human beings come to know His saving response in so far as they share in the sufferings of Christ. The response which comes from this sharing is before all else a call. It is a vocation. Christ does not explain in some abstract way the reasons for sufferings, but says first of all: "Follow me", Come, with your suffering share in this work of salvation of the world, which is realized through my suffering, by means of my Cross" (n 26). ...

Suffering is transformed when we experience in ourselves the closeness and solidarity of the living God: "I know that my Redeemer lives, and at last…I shall see God my savior" (Job 19:25-26). With this assurance comes inner peace, and from this a spiritual joy, quiet and deep, springing from the "gospel of suffering" which understands the grandeur and dignity of human beings who suffer with a generous spirit and offer their pain "as a living sacrifice, holy and acceptable to God" (Rom 12:1). This is why those who suffer are no burden to others, but with their suffering contribute to the salvation of all.

I find it difficult to believe that the man who wrote those words will step down from the task to which he has been appointed.

In turn, for us as Catholic lawyers, the Pope's example reminds us that the Gospel of Life is concerned as much with the end of life as with its beginning. Elder law is not my vocational expertise, but it strikes me as an area ripe for being put through what our leader and friend Mark Sargent has taken to calling the "Catholic wringer."

Science Advancing the Culture of Life?

We've previously noted how recent scientific developments have impacted the abortion debate (at least in the U.K.) by expanding our knowledge of the fetus.  It now seems that scientific developments stand to enrich the debate over euthanasia, given the results of this study:

Thousands of brain-damaged people who are treated as if they are almost completely unaware may in fact hear and register what is going on around them but be unable to respond, a new brain-imaging study suggests.

Rob

Monday, February 7, 2005

More on Personhood

With permission, I am posting an interesting exchange on personhood (see below) between Professor Larry Solum and Chris Green, a philosopher at Notre Dame:

Green to Solum:  Your discussion of moral personhood does not explain what relationship a being must have to intelligence, autonomy, communication, and self-awareness to be a moral person.  Dreamlessly-sleeping people or the reversibly comatose are certainly moral persons, but aren't presently exhibiting any of them.  A duplicate of a dreamlessly-sleeping person hasn't ever exhibited any of them, but would certainly be a moral person too, I think.  You have to go to capacity, or potency, or some other notion in that neighborhood to explain these sorts of cases, and if you do, it seems to me the human fetus will likely get included too.

Solum to Green:  I take the point--wonderfully concise in expression, too.  I wonder about the duplicate of dreamlessly sleeping person example.  Suppose the duplicate pops into existence & snoozes for a while & then pops out.  Is it clear that there was a moral person?  I'm not sure I have any strong intuitions about that case--it is so odd.  As is your duplicate case.  Fetuses lack the capacity for the marks of personhood but have the potentiality--isn't that what makes the case hard?

Green to Solum:  I would have pretty clear that the duplicate coming into and out of existence would be a moral person whose loss should be mourned; it seems to me that whether a being is a person at a time should depend only on the facts pertaining to the being's state at that time, so I have pretty clear intuitions that the duplicate is as much a person as the original.  I'm not sure what the difference is between a capacity and a potentiality; a potentiality just seems like a relatively long-range capacity, and someone in a long-term coma could be just as far away from exhibiting the criteria.

Solum to Green:  Again, wonderful points.  As to the duplicate who winks in and out, I notice that you say "should be mourned," but not, I think, "would be mourned."  I suspect you would agree that such entities would not be warned.  If there were very many of them, I would doubt that we even should mourn them.  It is far from clearl to me that such transient entities with the never realized capacity for functioning as persons would have the same moral status as those who have so functioned.  Is potentiality the same as capacity?  This one seems clear.  No, these are two different concepts.  It is possible to blur them--as it is possible to blur many concepts--by creating intermediate cases and pointing to the line drawing problem, but I am always suspicious of this move, which can be used to erase many important moral distinctions.

Rick

Faith-Based Torture?


Published on Monday, February 7, 2005 by Agence France Presse

CIA 'Outsourcing Torture'

WASHINGTON - The Central Intelligence Agency's "rendition" of suspected terrorists has spiralled "out of control" according to a former FBI agent cited in a report by The New Yorker magazine, which examined how CIA detainees are spirited to states suspected of using torture. The CIA uses the word "rendition" to mean the transport of suspected terrorists to other countries for interrogation.

Michael Scheuer a former CIA agent, said "all we've done is create a nightmare," with regard to the top secret practice.

In a forthcoming article titled "Outsourcing Torture" the magazine claims suspects, sometimes picked up by the CIA, are often flown to Egypt, Morocco, Syria and Jordan, "each of which is known to use torture in interrogations".

Despite US laws that ban America from expelling or extraditing individuals to countries where torture occurs, Scott Horton - an expert on international law who has examined CIA renditions - estimates that 150 people have been picked up in the CIA net since 2001.

The New Yorker report reveals that suspects in Europe, Africa, Asia and the Middle East "have been abducted by hooded or masked American agents" and then sometimes forced onto a white Gulfstream V jet.

The jet "has been registered to a series of dummy American corporations ... (and) has clearance to land at US military bases," the report said. Its tailmark has recently been changed from the code N379P to N8068V.

According to one suspect, Maher Ayar, who was arrested in 2002 by US officials and then claims he was tortured in Syria before being released, crew onboard the Gulfstream identified themselves as "the Special Removal Unit" during radio communications.

"The most common destinations for rendered suspects are Egypt, Morocco, Syria and Jordan, all of which have been cited for human rights violations," the report said.

By holding detainees without counsel or charges of wrongdoing, the administration of US President George W Bush "has jeopardised its chances of convicting hundreds of suspected terrorists, or even of using them as witnesses in almost any court in the world," the report said.

The report cited Dan Coleman, an ex FBI counter-terrorism expert who retired in July 2003.

Coleman told The New Yorker that torture "has become bureaucratised," by the Bush administration, and that the practice of renditions is "out of control".

Scheuer said there had been a legal process underlying early renditions, but as more suspects were rounded up following the September 11, 2001, attacks, "all we've done is create a nightmare".

Abductees are effectively classified as "illegal enemy combatants," by the US government, which is how it also classifies the estimated 550 "war on terror" detainees held at Guantanamo Bay, Cuba.

Such a classification, the US argues, exempts such detainees from the protections of the Geneva Conventions, part of which govern the treatment of prisoners.

Personhood

The latest entry in Professor Larry Solum's "Legal Theory Lexicon" -- "Personhood" -- is particularly relevant to our project here at Mirror of Justice.  Solum opens with this:

Are the unborn human persons? What is the difference between legal and moral personhood? What does it mean to say that a corporation is a legal person? Do the most intelligent animals deserve the rights of moral or legal persons? These questions are likely to arise sooner or later for most law students. This entry in the Legal Theory Lexicon explores the idea of personhood, moral, legal, and human. As always, this post is intended as an introduction for law students (especially first-year law students) with an interest in legal theory. . . .

Solum goes on to consider, among other things, the connection between "human" and "person"; the possibility of distinguishing between "three kinds of persons--natural, moral, and legal"; the "criteria for moral personhood"; etc.  I would welcome the reactions to Solum's post of any MOJ readers who work on or are expert in questions of "moral personhood."

And, to connect the discussion to "real life", consider this story in the Chicago Tribune, "Judge Says Lost Embryo a Human" (thanks to Amy Welborn):

An aspiring mother's fertilized egg mistakenly discarded by a fertility clinic was legally a "human being," a Cook County judge ruled Friday, clearing the way for a Chicago couple to file a wrongful-death suit.

If the judge's ruling stands, experts said, it could frustrate the work of fertility clinics and the future of stem-cell research. But attorneys who disagree on the question of when life begins said the ruling likely would be overturned.

"As an anti-abortion activist, I was pleased to see the judge's initiative," said Victor Rosenblum, a professor at the Northwestern University School of Law. "But as a lawyer, I can't say that he is on solid ground in his reasoning."

Rick