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.

Tuesday, March 29, 2005

The Fallibility of Judgment

By Michael Perry

In his post below, Richard Myers says that "it is useful to begin discussions about the appropriate stance towards clear, authoritatively expressed teachings of this sort with a healthy dose of humility about the fallibility of our own [moral] judgment."  Yes, no doubt.  But also with a healthy dose of realism about the fallibility of the magisterium's moral judgment.

The two types of authority that concern us here (authority to govern and authority to teach) are, of course, distinct and can be discussed separately.  In the Roman Catholic Church, however, we find that they are often intermingled, and sometimes even confused with each other.  Over the centuries governing power has often been used (and misused) to bolster teaching authority.  Such an approach can easily amount to little more than "we are right because we are in charge" or "we give orders, not explanations."   --Bernard Hoose, "Authority in the Church," 63 Theological Studies 107 (2002).

Some Catholics concede that the church admits of the principle of doctrinal development, but they accuse [John] Noonan, in Richard John Neuhaus's words, of too often equating development with "a change, even a reversal, of doctrine."  At a recent meeting of the Catholic Common Ground initiative, Noonan and theologian Avery Dulles had a polite, but sharp, exchange on the subject, with Noonan again insisting that "the record is replete with mistakes--the faithful just can't accept everything that comes from Rome as though God had authorized it."  --John T. McGreevy, "A Case of Doctrinal Development:  John T. Noonan -- Jurist, Historian, Author, Sage," Commonweal, Nov. 12, 2000, at 12, 17.

development of doctrine

By Richard Myers

Recent posts by Steve, Rob, and Michael have raised the important issue of the development of doctrine. Michael's post mentioned John Noonan's new book on the issue, which I have not yet had the chance to read.

The inaugural issue of the St. Thomas Law Journal (which was devoted to the work of Judge Noonan) contained several papers on development of doctrine. The authors who addressed this topic included Joseph Boyle, Cathy Kaveny, Bob Kennedy, and James Megivern. My own contribution, which is at 1 St. Thomas L. J. 285-306 (2003), is a critique of Noonan's position.

One of the points I made is that people too frequently reach the conclusion that the Church has changed Her position on a disputed issue. Sometimes the conclusion that the Church has changed Her teaching on one issue seems directed at an effort to argue that the Church ought to change Her position on some second issue. So, it is interesting to note that Noonan's book on Usury took the position that the Church had not changed Her position on this issue. As Germain Grisez pointed out, Noonan's charge that Church teaching on usury had in fact changed surfaced years later when the controversy over contraception was raging.

On the issue of religious liberty raised by Rob, I think people too quickly reach the conclusion that Church teaching has changed. Some of the statements from 19 century Popes seem inconsistent with Dignitatis Humanae. Yet what is necessary here is careful analysis to see if this is in fact the case. In my paper, cited above, I summarized the argument (elaborated at length by scholars such as Father Brian Harrison, Father Mullady OP, and Father Kevin Flannery SJ) that Church teaching on religious freedom has not in fact changed.

I don't think it is a good way to begin these discussions to ask "how faithful do I need to be to Church teaching?" (Think about our reaction if someone began their marriage wondering how faithful they needed to be to their spouse.) As Steve pointed out, all Catholics, not just scholars, owe assent to Church teaching. But, as he suggested, it is necessary to speak precisely about what it is the Church teaches authoritatively. Not every statement on the minimum wage carries the same weight as more authoritative statements in the Catechism or in encyclicals such as Veritatis Splendor or Evangelium Vitae.

On issues where the Church has spoken clearly, e.g., the teachings on abortion or euthanasia or contraception, Catholics owe a submission of intellect and will. I think it is useful to begin discussions about the appropriate stance towards clear, authoritatively expressed teachings of this sort with a healthy dose of humility about the fallibility of our own judgment.

Richard

               

Moral Judgment and the Death Penalty

By Rob Vischer

The Colorado Supreme Court has vacated a death sentence based on the jury's consultation of the Bible during deliberations.  The evidence showed that:

(1) one or more jurors brought a Bible, a Bible index, and handwritten notes containing the location of biblical passages into the jury room to share with another juror during deliberations in the penalty phase of defendant’s trial; (2) these extraneous materials contained a passage commanding the death penalty for murderers and another instructing obedience to civil authorities; and (3) these passages were pointed out by at least one juror to another juror before the jury reached its unanimous verdict imposing the death sentence.

My inclination is to embrace the majority's ruling, but the dissent's argument is not lightly brushed aside:

The jurors’exposure to Romans 13:1 and Leviticus 24:20—21 was not prejudicial to Harlan because the jurors were required to make an overwhelming moral decision, namely whether the death penalty was an appropriate punishment for Harlan. To this end, the court instructed the jurors to "apply [their] reasoned judgment in deciding whether the situation calls for life imprisonment or the imposition of the death penalty"(emphasis added). The court further told the jurors that "you must still all make a further individual moral assessment of whether you have been convinced beyond a reasonable doubt that the death penalty, instead of life in prison, is the appropriate punishment for [Harlan] in this case"(emphasis added). As such, the jury instructions squarely directed the jurors to consider their moral and religious precepts, as well as their general knowledge, when making a reasoned judgment about whether or not to impose the death penalty.

. . . .

[B]y choosing to define the written version of these commonly known biblical passages as "a higher authority,"the majority elevates form over substance. Many people know large parts of the Bible by heart and can quote certain passages verbatim with persuasive alacrity, particularly when the ideas in those passages are as widespread and generally known as those referenced here. It is without doubt that a juror may relate passages of scripture from memory during deliberations, and that such recitation would not even be considered extraneous, much less prejudicial. It makes little sense, therefore, that the exact same passage in written form is somehow enshrined with an authority that the spoken or remembered passage lacks.

In so holding, the majority puts death penalty jurors in an impossible bind; jurors are instructed to make the ultimate decision about life or death based on their individual moral assessment –so long as their individual moral assessments are made from memory. This holding is demeaning to all jurors, but especially the jurors in this case, because it assumes that jurors cannot be trusted to think for themselves or follow the law in the face of written, but not spoken, religious passages.

My experience with jurors leads me to emphatically reject the majority’s way of thinking. Jurors chosen to serve in death penalty cases are selected for their ability, stated under oath, to uphold the law, apply the law to the facts, and to make reasoned judgments based upon their respective backgrounds and beliefs. To presume that jurors who have a religious background cannot distinguish between the written biblical passages referenced here and the written jury instructions –a presumption that must be made in order to find prejudice in this case -is to underestimate their intelligence and to belittle their participation in our legal system.

The dissent has a point: if we expect a jury to make a moral judgment on a morally laden issue like the death penalty, it seems strange to categorically rule out the foundation on which many jurors' moral judgments will be based.  And I'm not certain that the "internal source" (OK) versus "external document" (not OK) distinction can bear the weight the courts seem to place on it.  Further, eradicating the moral component from a jury's imposition of the death penalty strikes me as a solution bringing a new set of problems.  Is it better to have jurors looking to the Bible as they hold a person's life in their hands, or to have them view death as a strictly amoral function of the legal apparatus?

Rob

Senator Rick Santorum on Religion in Politics

By Michael Perry

Sen. Rick Santorum: "I Draw No Line Between My Faith and My Decisions" - Christianity Today Magazine
http://www.christianitytoday.com/ct/2005/113/12.0.html

Monday, March 28, 2005

Schwarzenegger and CST

By Steve Bainbridge

Kevin Starr is probably the best - and most balanced - commentator on California politics and culture. His LA Times column on Arnold Schwarzenegger is typically brilliant and easily justifies wading through the Times' incredibly intrusive registration process. A quick taste:

Sacramento's wastelands are littered with the bleached bones of legislators and pundits who, unable to move beyond a cliche-ridden dismissal of a bodybuilder-movie-star-turned-governor, have underestimated the raw intelligence and honed intellect of the Austrian immigrant at California's helm.

Starr goes on to develop a persuasive case that Schwarzenegger is motivated by four big ideas, which Starr believes resonate with most California voters:

  1. A commitment to self-instruction, linked to confidence in an individual's capacity to discern for himself and suspicion of received wisdom and business as usual.
  2. A preference for direct democracy (even if it takes celebrity status to energize that democracy).
  3. The idea of reform, as linked to history, destiny and the ideal of "the champion."
  4. A paradoxical blend of free-market economics with a residual Euro-Catholic respect for government as social democracy and safety net.

It's that last idea that makes the article relevant to readers of this blog. Can it be that Arnold is striving to integrate the teachings of Milton Friedman and John Paul II in a way that no other US politician has done? If so, he could put some real content into the phrase "compassionate conservatism." The interesting question is: What would such a blend look like?

Responding to Rob (sort of)

By Steve Bainbridge

I think Rob raises a very good question, with which all of us must wrestle. In my own case, however, I must confess that wrestling has often turned into finessing. Here's what I said on the subject in my paper The Bishops and the Corporate Stakeholder Debate, for example (I especially direct you to footnote 2):

As with all of the Church’s ordinary teaching, the faithful “are to adhere to [the social teaching] with religious assent.”[1] Yet, the church encourages lay initiative “especially when the matter involves discovering or inventing the means for permeating social, political, and economic realities with the demands of Christian doctrine and life.”[2] Moreover, an active and critical role for the laity seems especially important with respect to economic life. Michael Novak asserts that Christian theologians tend to be poorly trained in economics and inexperienced with the business world. They “are likely to inherit either a pre-capitalist or a frankly socialist set of ideals about political economy.”[3] Consequently, theologians “are more likely to err in this territory [i.e., economic justice] than in most others.”[4]

[1] United States Catholic Conference, Catechism of the Catholic Church ¶ 892 (2d ed. 1997).

[2] Id. at  899. Villanova law school dean Mark Sargent observes that “the Catholic university—and hence, the Catholic law school—is where the Church does its thinking.” Mark A. Sargent, An Alternative to the Sectarian Vision: The Role of the Dean in an Inclusive Catholic Law School, 33 Univ. Toledo L. Rev. 171, 181 (2001). In my view, one properly may generalize Sargent’s proposition to the believing laity as a whole. Hence, it is the task of Catholic intellectuals to exercise critical reflective judgment with respect to society, the Church, and the relationship between the two. On the other hand, I recognize that there is a fine line between the exercise of critical evaluative judgment and dissent. On the legitimacy of dissent from the magisterium of the Church, compare Christopher Wolfe, The Ideal of a (Catholic) Law School, 78 Marq. L. Rev. 487, 497-98 (1995) (arguing there is no “right to dissent” as that term is broadly understood) with Michael J. Perry, The Idea of a Catholic University, 78 Marq. L. Rev. 325, 346 (1995) (arguing that “Catholics can and do, without forfeiting our identity as Catholics, dissent from one or another theological proposition”). In the present context, however, there seems no need to resolve this debate. When it comes to issues such as the degree of state intervention in the economy, for example, the Church outlines basic principles but recognizes substantial latitude with respect to their translation into public policy. Nowhere, for example, does the Church state what percentage of the economy should by controlled by the state, thus leaving a great deal of room for prudential judgment by Catholics. In promulgating their pastoral letter, moreover, the Bishops expressly acknowledged that their “prudential judgments” about specific policy recommendations were not made “with the same kind of authority that marks our declarations of principle.” Bishops’ Letter, supra note 7, at xii.

[3] Michael Novak, Toward a Theology of the Corporation 59 (rev. ed.1990).

[4] Id. at 12.

Martin Marty on Terri Schiavo (and Countless, Unnamed Others)

By Michael Perry


Sightings

Peace for Terri Schiavo
-- Martin E. Marty

Today down the street at a hospice or in your neighborhood hospital, one of many thousands of Americans is in a coma, or is "brain dead," or in a "persistent vegetative state," or any of a score of variations on the above.  Unless the person is your patient, your relative, your friend, or your fellow congregant who is regularly being prayed for, you've never heard of this person, and never will.

In the language of the Christian majority, however, "his name is written in the book of life," so no one needs to absolutize or idolize utterly reduced "lives."  More than half of them are under the care of priests, ministers, rabbis, chaplains, trained and certified deacons, and lay care-givers -- all of them pastors.

Who is a pastor, what does he or she do, and what does it mean to be under pastoral care?  The pastor is trained in medical ethics, consults experts, and has thought through the theological implications of what is going on, since such circumstances are constants in the pastoral world.  The pastor really, really cares about life, each life under pastoral care, valuing the life to come and the life that is.  The pastor no doubt knew the "brain-dead" patient when he was hearty.  She knows the one who is now in a "persistent vegetative state" back in good days and bad.  Dealing with persons in comas is part of the regular rounds for pastors.

Though not a parish pastor since 1963, I still get to do pastoral acts, thanks to such conveniences as autos and jets, plus snail-mail, e-mail, and telephones that make possible "virtual pastoral calls."  Even at the margins, I will get calls that say: "Marty, your friend XX is slipping away.  You agreed to phone a final prayer.  We are going to let her sleep tomorrow."  That is not "physician-assisted suicide."  It is natural and godly.  Or: "XX can't hear you anymore; she's really gone, except for the tubes.  You and she agreed you'd talk to the family as we look ahead."

Oh, yes, the family.  Pastoral care regards the patient in context, and knows that the family will outlive the dying member.  Over a period of time a pastor, a chaplaincy-circuit, a congregation will study the issues and make personal decisions with which families have to live.  The pastor will do all he or she can to help a family find courage to make the right decision, the freedom from guilt that goes with any choices -- all of them always bad -- and then to help them look ahead to the life that is really life.  The family can blend back into society and know that they also will be cared for spiritually in tough times.

It's too bad that because good pastoral activity is personal and private, most citizens do not know about it, or for good enough reasons of their own do not avail themselves of it.  Really too bad is when, whatever wonderful pastoral care may go on behind the curtains, the patient becomes a "case," an "object," a "thing" to be fought over, exposed to public view, used for a variety of political and religious and other causes.  Really, really too bad is when the family and their supporters are tempted and expected to spend their subsequent years in frustration and fury, wreaking vengeance (on whom?), nursing resentment, seeking more power, dividing and distracting the citizenry.

With sympathy for her family, both sides of it, most of us will turn when the time comes and say: Terri Schiavo, rest in peace and let the people say, Amen.

----------

Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

Rhetoric and Reality

By Susan Stabile

One MOJ reader responded to my post earlier today with a fair criticism of my observation that "leaving aside the question whether Congress had any business at all getting involved in the Shiavo matter, it is difficult for people to take seriously the claims of support for the dignity of life made by Republican lawmakers who have at every turn undermined human dignity by their decisions about health care, tax policy and the like."  Conor Dugan writes:

"I have to admit that I find it difficult to take seriously your claims when you paint such a caricature of Republican lawmakers.  I don't doubt that Republican lawmakers have in some instances undermined human dignity by their policy choices in Congress.  But I do doubt whether such a blanket assertion without more can really withstand serious criticism.  Furthermore, the simple fact that so many Catholics of good will tend to support the Republicans and their initiatives -- not just because of the abortion issue -- but also because they believe Republican economic policy generally helps to further the common good and foster human dignity would at least counsel caution in making such broad assertions."
 
Quoting language from the Bush's acceptance speech in the last election, he continues:
"Those words, seem to me to stand for the fostering of the common good and the protection of human dignity (in more than its unborn form)."
I agree that "at every turn" was overbroad and unfair and I deserve to be taken to task for it.  At the same time, I stand by my fundamental critique of the inconsistency of the present administration (as well as the concern that inconsistency undermines efforts to get others to take seriously an ethic of life). 
I don't disagree that a lot of the rhetoric sounds good.  However in too many ways the rhetoric has not matched the reality and, in my view, many of the steps taken by this admistration have undermined the human dignity of many groups of persons in our society.
Susan

Response to Rob Vischer ...

By Michael Perry

... and to other interested readers of this blog.  For Rob's query about a faithful Catholic's proper relationship to the teaching authority of the magisterium, click here.  Two excellent places to begin for those interested in pursuing this issue:

1.  Judge John T. Noonan Jr.'s new book, A Church That Can and Cannot Change:  The Development of Catholic Moral Teaching (2005).  Click here.

2.  Francis A. Sullivan, Creative Fidelity:  Weighing and Interpreting Documents of the Magisterium (2003).  Click here.

(Thanks to Cathy Kaveny for recommending these books.)

I touched upon the issue in chapter 5 of my book Under God?  Religious Faith and Liberal Democracy (2003).   Chapter 5 is titled Catholics, the Magisterium, and Same-Sex Unions:  An Argument for Independent Judgment.  Click here.

Steve Smith on "Hollow Men"

By Rick Garnett

Steve Smith's paper, "Hollow Men:  Law and the Declension of Belief" is availabe at SSRN, here.  The abstract states:

If believing is central to what makes us persons, then how do we react when our core beliefs come under serious challenge? The "purest" responses are probably to engage in responsible apologetics, defending our beliefs against the challenges, or else adjustment or relinquishment of our beliefs in accordance with what we come to understand the truth to be. Often, however, we resort to less "pure" responses. We "bend the truth" or "fudge the facts" to deflect challenges to our beliefs. Or, in a response that entails more implicit philosophical sophistication, we deflate our very conceptions of truth and belief: in this case, this essay suggests, we may continue to affirm propositions even though we no longer fully and in good faith believe them.

This essay, presented as part of a lecture series on "Christian Contributions to Contemporary Jurisprudence," argues that this last "declensionist" response produces a kind of hollowness in our personhood. The essay then explores manifestations of such declensionist strategies in modern thinking about the nature of law. It concludes by sketching some possible alternatives that Christian legal thinkers might take in response to such declension.

Rick

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