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 15, 2005

A Reply to Rick re the iPod Nation

As someone who feels about his iPod sort of the way NRA types feel about their guns, I may not be unbiased, but I'm going to take up Rick's recent challenge anyway.

Rick pays Andrew Sullivan the compliment of taking seriously Sullivan's essay iPod World: The End of Society?, in which the latter wrote:

Americans are beginning to narrowcast their own lives. You get your news from your favorite blogs, the ones that won't challenge your own view of the world. You tune into a paid satellite radio service that also aims directly at a small market - for New Age fanatics, or liberal talk, or Christian rock. Television is all cable. Culure is all subculture. Your cell-phones can receive email feeds of your favorite blogger's latest thoughts - seconds after he has posted them - or sports scores for your own team, or stock quotes of just your portfolio. Technology has given us finally a universe entirely for ourselves - where the serendipity of meeting a new stranger, or hearing a piece of music we would never choose for ourselves, or an opinion that might actually force us to change our mind about something are all effectively banished. Atomization by little white boxes and cell-phones. Society without the social. Others who are chosen - not met at random.

Human beings have never lived like this. Yes, we have always had homes or retreats or places where we went to relax or unwind or shut the world out. But we didn't walk around the world like hermit crabs with our isolation surgically attached. Music in particular was once the preserve of the living room or the concert hall. It was sometimes solitary but it was primarily a shared experience, something that brought people together, gave them the comfort of knowing that others too understood the pleasure of that Brahms symphony or that Beatles album.

Now where have we seen this before? Ah ha! Isn't Sullivan just recycling Robert Putnam Bowling Alone thesis? With a techno-geek spin?

You'll recall that Putnam's 1995 essay and 2000 book claimed that social capital was in decline due to a loss of community. Observing that people supposedly were bowling alone more often, Putnam opined: "The broader social significance ... lies in the social interaction and even occasionally civic conversations over beer and pizza that solo bowlers forgo." Sounds a lot like Sullivan's complaint about the iPod, doesn't it?

The problem is that it is all bunk. Shortly after Putnam's 1995 essay appeared, Robert Samuelson viciously fisked it for Newsweek. More recently, Marginal Revolution guest blogger Fabio Rojas pointed out research that directly undermines Putnam's titular claim:

Tim Hallett, a colleague of [Rojas'], his dissertation advisor Gary Alan Fine and graduate student Mike Sauder decided to see if people really bowled alone. They recently published a summary of their findings in the magazine Society. Fine, Hallett and Sauder write: "As occasional bowlers – although not in leagues – we asked a simple question: Do Americans really bowl alone, and what, if anything, does it mean?"

To answer that question, they went bowling and observed over 800 bowlers at six Chicago area bowling alleys. What did they find? Less than 1% of the people seen bowling actually bowled alone. In interviews, only 13% said they had bowled alone during the past year. What about those loners? Were the solo bowlers introverted and anti-social? To the contrary, 12 out of 22 interviewees who admitted to bowling alone did so to practice so they could do well in bowling leagues. In other words, bowling alone correlates with being in a bowling league.

In short, Putnam was wrong. So, in my judgment, is Sullivan. The evidence simply doesn't support the claim that were are retreating into a world, to quote Sullivan, of "Society without the social."

But suppose they're right? So what? Putnam's thesis has been seized upon by left communitarians to justify a whole slew of "It Takes a Village"-style government initiatives designed to promote community and solidarity. They thus bring to mind Richard Epstein’s observation that socialists no longer advocate direct government ownership of production. Instead, they operate on two different levels: "At a personal level, [modern socialism] speaks to the alienation of the individual, stressing the need for caring and sharing and the politics of meaning. At a regulatory level, it seeks to identify specific sectors in which there is a market failure and then to subject them to various forms of government regulation."

Yet, as I explained in my article Community and Statism: A Conservative Contractarian Critique of Progressive Corporate Law Scholarship, if America is becoming a low social capital society, it is precisely because of the sort of statism the left communitarians propose to foist upon us. Indeed, it can be argued that the decline in social capital (if there is one) began when the rich set of mediating institutions famously praised by Tocqueville was caught, like the Romans at Cannae, between the nanny state on one side and judicial hijacking of the state’s monopoly on the use of coercive force to advance a hyper-legalistic cult of the autonomous individual on the other.

We may fear the faceless bureaucrat, but he does not inspire us to community. Social capital thus cannot be created by state action. But while the state cannot make its citizens invest in social capital, it can destroy the intermediary institutions that do inculcate virtue. To quote Epstein, again: "Communities can be destroyed from without; but they cannot be created from without; they must be built from within."

So my answer to Rick is: Don't take Sullivan too seriously. Which, come to think of it, is probably a pretty good rule of thumb!

(X-posted to my main blog.)

Pro-Life Progressivism: Avoiding the Pitfalls

As Mark Sargent noted in his posting, I too attended (most of) the Pro-Life Progressive symposium (“Can the Seamless Garment Be Sown”) here at the University of St. Thomas School of Law in Minneapolis this past weekend. I also join with Mark in congratulating the organizers, especially my colleague Tom Berg, and participants for a greatly successful program, which notably drew a large audience from the community, who were not the typical attendees of a law school symposium. Mark volunteered to post further summaries of the presentations made and his observations, and I for one would benefit in hearing more from him.

Because so much was said that was positive and indeed inspiring at this symposium, it would not have been appropriate for me as a non-participant and harboring concerns to be the first to post on this event. For that reason, I deliberately delayed this posting until after someone else, such as Mark Sargent, who was a direct and thoughtful participant had the chance to relay his impressions of the gathering.

As an observer of the Pro-Life Progressive discussion, I was a sympathetic outsider looking in with great interest. I am sympathetic in that I too yearn for a pro-life witness from the political left. I remain an outsider in that I do not agree with every element of the progressive agenda, at least on the means to the ends (as I share the skepticism well-expressed on this blog by Rick Garnett about over-reliance on statist methods, and have a greater appreciation for free enterprise as the best, if imperfect, engine for economic progress). I look inside with great interest because of my fervent wish for an ever-larger and diverse witness for life; indeed, because of the powerful message for life that would be sent thereby, I’d be tempted to vote for a genuinely pro-life liberal candidate for public office – even over a conservative of comparable pro-life credentials – despite my doubts about other elements of the progressive platform.

Having thus acknowledged my perspective, and having listened carefully to (most of) the presentations at the symposium, I thought I identified three potential dangers that could undermine Pro-Life Progressivism as an authentic pro-life movement.

First, a few participants exhibited an unseemly tendency to depreciate the value of electing pro-life candidates to office and to denigrate pro-life accomplishments. The argument that pro-life candidates (at least of the Republican variety) abandon the anti-abortion cause once elected to office is overstated, objectively false, begs the question of why offering progressive pro-life candidates would serve any practical purpose, and often appears to be a thinly-veiled excuse for ignoring even the most egregious of pro-abortion records of liberal candidates so as to justify casting votes for them.

One of course can and should criticize Republican leaders who sometimes fail to place pro-life issues on the front-burner and fully exercise the bully pulpit of public office to speak against the culture of death. But one legitimately can urge even more attention to the scourge of abortion without denigrating hard-fought victories for the pro-life movement. We must recognize that the battle for life will be won mostly through small successes that build upon each other. At the federal level, pro-life members of Congress have been able to enact a prohibition on the grisly practice of partial birth abortion and continue to fend off the persistent efforts of the pro-choice left to subsidize abortion-on-demand through federal spending. While President Bush was criticized as the Pro-Life Progressive symposium for not speaking more energetically against abortion, he in fact frequently mentions the subject and devoted an entire speech to the matter at the recent anniversary of Roe v. Wade (although the news media tend to ignore those statements). At the state level, pro-life legislative successes continue to multiply, from ensuring greater information to women in trouble, protecting the rights of parents, and providing easier access to alternatives to abortion. While these pro-life successes are not yet the bountiful harvest for which we all pray, the basket is by no means empty.

If those who claim to be building a pro-life progressive movement belittle the hard work of those who for many long years have labored hard in the political vineyard and reaped many victories over the concerted opposition of the party that claims to speak for progressives, this newly-formed progressive voice simply will not be in solidarity with the pro-life movement as a whole.

Second, while some participants persuasively argued that Pro-Life Progressives are better situated to seek common ground with skeptics on the question of life, including those on the pro-choice side, such fora for dialogue must be entered with caution lest they be abused by abortion advocates who disguise themselves or their agenda. The dialogue must be conducted with integrity and always with fidelity to the cause of life.

As a frightening example of the risks posed by naive ventures in the “common ground” direction, one person in the audience of the Pro-Life Progressive symposium raised the possibility of dialogue with Catholics for a Free Choice. Much harm would come to the Pro-Life Progressive movement were it to pursue exchanges with this deceptively-named front for the abortion industry. Asking for dialogue with such a fraudulent and extremist outfit would be tantamount to expecting the abolitionists to have sought common ground with the auctioneers at the slave market. The only thing that could come from such an exchange would be to polish the tarnished public image of pro-abortion groups and abortion industry lobbyists, while distracting and dividing the pro-life movement and thereby suppressing the witness for life. To be sure, one should always be ready to reach out to people of good will who are unsettled on the issue or who are genuinely prepared to reevaluate the absolutism of pro-choice politics. But one must never allow one’s natural and generous desire for dialogue to be cynically manipulated by others to a very different purpose.

More than one participant in the symposium emphasized that, while constituting a welcome beginning, changes in the rhetoric on abortion by certain liberal political figures must be accompanied by meaningful action. While the action that should be expected was not made concrete (which brings me to my third concern below), it at least indicated that more than one member of the Pro-Life Progressive movement is attuned to the risk I describe above.

Third, the Pro-Life Progressive movement, while presenting itself both as a sincere opponent of abortion and broadly progressive on economic and international matters, seemed rather short on specifics about how to advance the pro-life cause beyond words. Indeed, more than one speaker raised doubts about whether anti-abortion legislation—with the eventual goal of prohibiting any violent taking of unborn human life—ought to be pursued. All of us agree that the culture must be changed if we are to realize our hope of one day placing abortion alongside slavery and genocide as universally-acknowledged intrinsic evils. Moreover, some of us will be called to devote our time and talents to reaching hearts and minds, rather than to engaging with politicians and judges. But the pro-life movement as a whole cannot stand by and fail to take such action as is possible now. We must save as many lives as we can today, even if limited restrictions on abortion and enhancement of alternatives are all that can be legislatively achieved at present.

Interestingly, the same symposium participants who were quick to dismiss pro-life Republicans as inconsequential based upon a supposedly inadequate legislative agenda were also the ones who seemed most reluctant to forthrightly endorse legal constraints on abortion as part of the new movement’s platform. If this cognitive dissonance is rooted in an underlying timidity about pro-life politics or an unwillingness to unite with other pro-life activists across the political spectrum in seeking always to accomplish whatever is politically possible, then it will be difficult for this new movement to sustain itself as truly pro-life as well as progressive.

I do not mean to suggest that any one of the three dangers mentioned above, much less all three in concert, were manifested in a dominating way at the Pro-Life Progressivism symposium. But each emerged from time to time. Nor do I think it inevitable that the Pro-Life Progressive movement will succumb to these temptations. Any nascent political movement will be less than fully formed and internally coherent at its birth. Mapping the pitfalls, so that they may be avoided, ought to be welcomed as advancing the cause. Mark Sargent’s earlier posting confirmed that these risks are recognized by those within the movement.

If Pro-Life Progressivism is truly to be a fourth political alternative in the country (along with conservatism, libertarianism, and secular liberalism), then it must be authentically pro-life as well as genuinely progressive. Should it succeed in becoming a viable part of the political landscape, while remaining true to its pro-life soul, we all would have great cause to rejoice.

Greg Sisk

Evangelicals and Catholics as Conservative Alliance

In the current Books & Culture, noted evangelical theologian J.I. Packer paints an intriguing portrait of William Shea's recent book, The Lion and the Lamb: Evangelicals and Catholics in America (Oxford 2004).  Shea traces:

the parallel between the Catholic and evangelical volte-faces during the past century and a half. The Catholic story is of defensive anti-modernism capped by Vatican II's new openness to dialogue with the world and with non-Catholic Christianities, a move that left integralists behind. The evangelical story is of anti-liberal fundamentalism trumped by the commitment of the 1942 National Association of Evangelicals to interactive engagement with both secularism and Protestant liberalism, a move that left fundamentalists behind.

In many ways, it seems conservative Catholics and evangelical Christians have more in common with each other than they do with the more liberal elements of their own faith tradition.  Packer explains that:

To all conservative Christians, liberals, however well meaning, appear as parasitic cosmeticians; cosmeticians, because they constantly aim to remove from Christianity that which outsiders, like some inside, find intellectually unsightly and unacceptable; parasitic, because they attach themselves to the historic faith and feed off it even as they whittle it down, diminishing, distorting, and displacing major features of it to fit in with what their skeptical conversation partners tout as factual truth. In mainline Protestantism, where doctrinal discipline is, alas, virtually nonexistent, liberals have a free run, but in Catholicism only a few steps along this road prove to be too far. Witness Hans Küng . . . . Liberal Catholicism may have charms, but has it a future? One doubts it.

Read the rest here.

Rob

Deja Vu All Over Again: Religion, Politics, and Abortion ... in the United Kingdom

[My friend Gerry Whyte, a member (and former dean) of the law faculty at Trinity College, Dublin, rightly thought that many MOJ readers would be interested in this piece:]

The [London] Times
March 15, 2005

Cardinal tells Catholics to reject Labour over abortion

THE Roman Catholic Church made a dramatic entry into the election campaign yesterday by backing Michael Howard’s stance on abortion and withdrawing its traditional support for Labour.

Cardinal Cormac Murphy-O’Connor ensured that abortion would play a greater part in the coming election than any other by praising the Tory leader’s call for a cut in the legal abortion limit from 24 to 20 weeks.

The Archbishop of Westminster went on to admit that Labour was no longer the natural party of choice for the UK’s six million Catholics.
. . .

Yesterday’s statement indicates the determination of the Church to engage fully in pre-election politics.

Cardinal Murphy-O’Connor said: “Sometimes people say religion and politics do not mix and they should not mix. Religion is about the love of God and the love of our neighbour. It is clearly the second of those where religion and politics do mix.”

[To read the whole piece, click here.]

Cobb County's Stickers

Yale law professor Stephen Carter (author of such excellent books as Affirmative Action Baby and Integrity) takes on the latest church-state imbroglio: creationist stickers on biology texts. I'm not at all sure I buy his take on that specific problem, but I very much liked his statement of the general issue:

It is getting harder and harder to tell the difference between the separation of church and state and the elevation of state over church. The doctrine of separation, which some scholars call a peace treaty, is at its best when the church acts in one sphere of authority and the state acts in another. The doctrine is at its worst when the state uses its considerable power to sterilize every trace of religious activity or language. Then, the doctrine is less a peace treaty than war by other means. (Link)

(HT: Southern Appeal)

Monday, March 14, 2005

Pro-Life Progressivism at St Thomas

Got back Saturday from a terrific conference at St Thomas Law organized by Tom Berg entitled "Can the Seamless Garment Be Sewn? The Future of Pro-Life Progressivism." It was interesting to discuss these issues in a state where there actually is a pro-life progressive tradition, and to do so after the Common Ground conference the previous weekend in DC on "Religion, Law and Politics." This flurry of activity did not necessarily convince me that there is a politically viable pro-life progressive movement, but each certainly intensified the discussion, and showed that there are serious and subtle issues to be considered.

The panels were very well balanced. The first one included nice articulations of the CE of L as a philosophical basis for PLP (sorry about the acronyms, but my fingers hurt!) by the well-known Sidney Callahan, and by John Carr of the USCCB. They were countered by Susan Appleton, a law prof from Wash U who argued that a prolife position that criminalized abortion cannot be squared with the human dignity of women as understood in progressive thought. Kevin Schmiessing of the Acton Institute did not have any trouble with the prolife part of PLP, but did not think progressivism was very Catholic (especially "progressive" versions of Catholic Social Thought). I don't know which I disagreed with more. Later, John O'Callaghan, a philosopher from ND, gave an unusually sophisticated and subtle version of the non-equivalence critique of the CE of L. I ended up speaking towards the end of the day, and tried to respond to all three critiques.

1. In response to Prof. Appleton, I argued that the left has gone astray, and departed from its own core commitment to the oppressed, by refusing to recognize that the unborn have as much a claim to human dignity as women, and that it must seek justice for BOTH mother and child. This would include at least a restrictive legal approach to abortion and a much stronger social safety net for the poor and minority women who are getting most of the abortions.  The left cannot avoid that conundrum by dismissing the personhood of the embryo or fetus, and by fetishizing choice as the only aspect of a woman's dignity. I thus believe that the prolife argument can be squared with secular progressive values. While the antiabortion movement has drawn force from those who are also committed to the preservation of patriarchical authority and subordination of women, the prolife argument does not depend upon those values philosophically, and is also put forward by many who share feminist values.

2. Our readers already know what I think about the Novak-Acton line, so I won't reiterate that here.

3. The non equivalence argument, which attacks the coherence of the CE of L by distinguishing between the intrinsic evil of abortion, and the more complex and contingent moral calculation associated with making decisions about war, poverty etc., draws too sharp a distinction between principled and prudential decisions that are made about these problems. I expanded upon the argument I made at the CGI conference, and posted last week, re the prudential issues generated by the moral evil of abortion in a pluralistic democaracy and the principles implicit in the social and economic issues that limit our ability to dismiss all disagreements about them as matters of prudence.

I'll post my paper when I've finished revising it (and making up the footnotes!). If people are interested in following up on this post, I'll add some details re the other presentations, especially re the political questions. Our fellow blogista Greg Sisk was in the audience, and may have some thoughts.

-Mark

California's Marriage Law Is Irrational

A California trial-court judge has ruled that California's marriage laws -- which define marriage as between one man and one woman -- are unconstitutional, under the California Constitution's equal-protection clause.  In the judge's view, the distinctions drawn and classifications created in the laws "do not rationally relate to a legitimate state purpose. . . .  [N]o rational purpose exists for limiting marriage in this State to opposite sex partners."

Rick

Sunday, March 13, 2005

Eschatology as Murder Motive

In its coverage of Saturday's Wisconsin church shootings, The New York Times dove right into the heart of the story, in its view: the crazy beliefs of the church, especially the church's "end times" beliefs:

The church's "pre-millennial" view of history, which asserts that humankind is moving inexorably toward the "end times," when the world will go through a series of cataclysms before the second coming of Christ, is not uncommon among evangelicals. Dr. Meredith preached in a recent sermon broadcast internationally that the apocalypse was close, warning members to pay off credit-card debt and hoard savings in preparation for the United States' coming financial collapse.

But James R. Lewis, author of "The Encyclopedia of Cults, Sects and New Religions," said such focus on the end of the world "doesn't make them violent."

"All traditional, conservative religious groups have an end-time belief, even peace groups like the Amish and the Mennonites," said Mr. Lewis, a lecturer at the University of Wisconsin at Steven's Point. "It is radically unfair to say that because they have a belief in the apocalypse, they are prone to violence. They shouldn't be stigmatized on basis of theology."

I appreciate the gracious opportunity afforded by The Times for Mr. Lewis to disassociate a belief in the apocalypse from any murder committed by an individual holding such a belief, but exactly who (besides the reporter) was making such an accusation in the first place? Perhaps the journalistic reasoning goes like this: reasonable folk recognize that mass murder makes no sense; reasonable folk recognize that a belief in a divinely ordained end to human history makes no sense; therefore, the two must be connected. Is this part of the mainstream media's effort to take religion more seriously?

Rob

Can God and Caesar Coexist?

MOJ readers may be interested in Judge John T. Noonan Jr.'s review of a new book by Robert F. Drinan, SJ:  Can God and Caesar Coexist?  Balancing Religious Freedom and International Law (Yale University Press 2005).  For the review, click here.  Strangely, as of this morning, I can't locate Drinan's book either on amazon.com or on the Yale University Press website.

Human Rights and Religion

Within the next few weeks, I expect to post a new paper here, titled:  The Morality of Human Rights:  A Nonreligious Ground?  Meanwhile, though, consider this:

"SURPRISINGLY, the Weberian vision of a modernity characterized by 'specialists without spirit, sensualists without heart' applies much more to modern Europe than to present-day America. Europe today is a continent that is peaceful, prosperous, rationally administered by the European Union and thoroughly secular. Europeans may continue to use terms like 'human rights' and 'human dignity,' which are rooted in the Christian values of their civilization, but few of them could give a coherent account of why they continue to believe in such things. The ghost of dead religious beliefs haunts Europe much more than it does America."

--Francis Fukuyama, "Thje Calvinist Manifesto," New York Times Book Review, March 13, 2005, page 35.