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, April 13, 2005

COMMONWEAL on John Paul II

From the issue dated April 22, 2005

EDITORIAL
Peter's Successor

Pope John Paul II was a force of nature, a man of iron will and passionate spirituality, who was also blessed with a quick wit, a magnetic personality, and a fearless moral temperament.

There can be no gainsaying his extraordinary achievements, both on the world stage and as one of the most compelling Christian witnesses of our time. The millions who poured into Rome to view his body and attend his funeral were the most obvious testimony to the regard in which he was held by Catholics and non-Catholics alike. Countless words have now been written honoring this pope, and trying to explain the powerful effect Karol Wojtyla exerted over the sophisticated and the unsophisticated, over believers and nonbelievers, and perhaps especially over those seeking faith in a world where religious answers and religious authority can no longer be taken for granted. In his dying as in his life, John Paul made his love of and devotion to Christ real for others in the most intimate and undeniable ways.

Commonweal has asked commentators of different faiths and philosophical inclinations to reflect on the broad sweep of John Paul’s legacy (page 13). Over his long papacy this magazine has, of course, written extensively about John Paul, and a selection of that material is available on our Web site (commonwealmagazine.org). Like any significant historical figure, this pope will only be truly understood in the course of time. He was, for many of his contemporaries, a figure of paradox, even contradiction. His unwavering defense of human freedom and his eagerness to engage thinkers of all persuasions too often stopped at the church’s doors. He traveled the world confronting tyrannical governments, but refused to listen to those calling for change, or at the very least dialogue, within his own house. He broke down barriers between Catholicism and other faiths, especially Judaism, but seemed determined, in his appointment of bishops and cardinals, not to permit pluralism a place at his own table. He gave the church the most accessible and compelling public face imaginable, yet turned a stony face toward many fellow Catholics.

Perhaps these contradictions are best understood in light of John Paul’s formative experience as a bishop in a Polish church that had to walk a delicate line between accommodation and confrontation in its struggles with a totalitarian regime. It was there that John Paul learned the virtues of church unity, discipline, and loyalty. Without those qualities, the Polish church would have been divided, undermined, and destroyed. Unfortunately, he seemed to take this model of an embattled church-one that could not brook public discord on internal church matters-and to employ it even when dealing with liberal democracy and modern secular culture. Some credit John Paul’s hard line on church discipline and theological dissent with revitalizing a moribund institution and forging a more cogent sense of Catholic identity. His critics note, more often in sorrow than anger, that there is little evidence that the church’s teachings are more broadly followed or deeply held after John Paul’s reign. More worrisome, there is even less evidence that, under his firm grip and long shadow, local churches are producing the kind of leaders needed in his absence.

One of the most acute comments on the pope’s passing was made by the Irish novelist Colm Toibin in the New York Times Magazine (“A Gesture Life,” April 10). Toibin described John Paul’s presence before a crowd of 1 million at the church of the Black Madonna in Poland in 1991. The pope’s hesitant yet sure movements, his practiced but effortless gait, were the work of a great actor, Toibin observed. The novelist was struck especially by how the pope’s facial expressions somehow conveyed humility and pride, loneliness and exhilaration. John Paul was “natural and improvised and also highly theatrical and professional. More than anything, [he] was unpredictable.” At one point during the Mass, the pope held the crowd’s attention for twenty minutes by merely holding his head in his hands. To Toibin’s mind, John Paul’s artful gestures provided “some mysterious example of what a spiritual life might look like.”

Toibin used his novelist’s gifts to render unmistakably what has been one of the most expressive faces of the last century. “His eyes understood and forgave everything,” Toibin writes, but “his mouth and the set of his chin forbade deviation and did not want there to be any change.”

Toibin’s description reminds us that Christ entrusted his church to Peter and his successors, to fallible human beings, not to oracles or gods. John Paul’s was an all too human face, one Catholics looked up to for more than a quarter century, and to whom we have now bid a wrenching goodbye. It is a face the church, and the world, will not soon forget.

April 12, 2005

In re Terry Schiavo

The following editorial, from COMMONWEAL, April 8, 2005, is worth reading and reflecting on:

EDITORIAL
Extraordinary Means

The passions of those on either side of the Terri Schiavo tragedy are not hard to understand. Still, whether Michael Schiavo was right to have his wife’s feeding tube removed is not a judgment that people outside the family should second-guess too quickly or easily. The choices involved cannot simply be reduced to the slogan “err on the side of life” or to accusations of euthanasia or death by starvation. Contested by Terri Schiavo’s parents, Michael Schiavo’s decision was rightfully adjudicated in the courts, not in Congress, the Florida governor’s office, or the White House.

Given the inherently complex nature, both medically and morally, of Terri Schiavo’s persistent vegetative state (PVS), the demagoguery of some of her self-appointed advocates, especially certain elements of the prolife community and the Republican Party, has been appalling. Almost as bad has been the failure of the Catholic hierarchy to present the full depth and subtlety of Catholic teaching on this difficult question.

[To read the rest, click here.]

Tuesday, April 12, 2005

Sargent on Law and Economics

An abstract of Mark Sargent's forthcoming paper, "Utility, the Good, and Civic Happiness:  A Catholic Critique of Law and Economics", is available here:

This paper contrasts the value maximization norm of welfare economics that is central to law and economics in its prescriptive mode to the Aristotelian/Aquinian principles of Catholic social thought. The reluctance (or inability) of welfare economics and law and economics to make judgments about about utilities (or preferences) differs profoundly from the Catholic tradition (rooted in Aristotle as well as religious faith) of contemplation of the nature of the good. This paper also critiques the interesting argument by Stephen Bainbridge that homo economicus bears a certain affinity to fallen man, and that law and economics thus provides appropriate rules for a fallen world. From a Catholic perspective, the social vision of neo-classical economics and its progeny (welfare economics and law and economics) rests on a concept of human autonomy and a utilitarian concept of pleasure inconsistent with the Aristotelian and Aquinean concept of virtue and the conception of civic happiness articulated by Antonio Genovesi and other Catholic economists.

Rick

Online Symposium: Philpott on Reconciliation

Notre Dame's Dan Philpott, professor of Political Science, contributes these thoughts (taken from an essay recently published in America magazine), on John Paul II and reconciliation, to the online symposium on the Pope's legacy in the legal context:

In his message for the 2002 World Day of Peace, Pope John Paul II affirmed “the right to defend oneself against terrorism,” but made forgiveness and reconciliation his central theme. In the Old and New Testaments, reconciliation means “restoration of right relationship.” The Christian tradition emphasizes restorative practices of healing, repentance and forgiveness between individuals. Now John Paul II is advocating these for collectivities: nations, civilizations and the church itself.

In a quarter-century of statements and speeches, the pope has taught reconciliation under three headings: apology, forgiveness and dialogue.  By his own example he has shown the importance of apology. According to the Italian journalist Luigi Accatoli, John Paul has led the Catholic Church in apologizing for its own members past sins at least 94 times for 21 categories of historical offenses, including hostility toward Jews, slavery, denials of religious freedom, the Crusades and the Inquisition.

He has taught also forgiveness as a practice for nations and states, beginning with his second encyclical, Dives in Misericordia (“Rich in Mercy,” 1980) and repeating the theme in several later messages, including his post-Sept. 11 message for the World Day of Peace in 2002, in which he appended to Paul VI s famous “no peace without justice” the phrase “no justice without forgiveness.”

Finally, the pope has led the church in dialogue, which, he explains, involves the charitable uttering and hearing of disagreement in the hope of a deepened understanding. Besides urging dialogue between Christian churches and world religions, John Paul II has called for a “dialogue between civilizations,” an invitation to which Muslim leaders . . . have responded warmly. 

A social ethic of reconciliation is an important development in Catholic social thought. . . .  What [the Pope and other thinkers] suppose is that a Christian social ethic, like the Gospel in the life of an individual person, is incomplete if it consists solely of a set of norms prescribing what is good, just, right and consonant with natural law—the logic of most Christian political thought since the Middle Ages. A new social ethic must also teach how a society ought to proceed when everything has gone wrong, and how it can realize healing, forgiveness and restoration as social processes grounded in the Cross and the Eucharist, a logic that dates back to the Gospel itself.

Ethicists must now translate these theological concepts into an applied political ethic, specifying how and by what moral criteria reconciliation might take place. . . .

Rick

Online Symposium: Cochran on the Economics of Freedom

Here is a contribution to the MOJ symposium on John Paul II and the Law from Pepperdine's Bob Cochran:

John Paul's writing on subsidiarity has been very influential in my thinking.  In "Centesimus Annus, The Economics of Human Freedom," he said:

In the Christian vision, the social nature of man is not completely fulfilled in the state but is realized in various intermediary groups, beginning with the family and including economic, social, political, and cultural groups that stem from human nature itself and have their own autonomy, always with a view to the common good.

The principle of subsidiarity must be respected: a community of a higher

order should not interfere in the internal life of a community of a lower

order, depriving the latter of its functions, but rather should support it

in case of need and help to coordinate its activity with the activities of

the rest of society, always with a view to the common good. Needs are best

understood and satisfied by people who are closest to them, and who act as

neighbors to those in need.

In my view, this strikes the right balance and Christians should be neither libertarians nor socialists.  The state has important value, but it primarily should be concerned with keeping intermediate communities healthy, rather than doing everything itself.  This has implications for almost every

area of law-family law, property law, wills, welfare policy, education law, constitutional law, etc.  I have even argued that it has an important place in Tort Law (see my "Christian Perspectives on Legal Thought" and "Law and Community").  Historically, the law did a much better job of protecting

intermediate communities, but it has tended to take responsibilities from them.

Rick

Death as Legal Presumption

MoJ readers may be interested in a new paper posted on SSRN by Florida State law prof Lois Shepard entitled, In Respect of People Living in a Permanent Vegetative State -- And Allowing Them to Die.  Here (thanks to Larry Solum) is the abstract:

This article considers the controversy surrounding the removal of Terri Schiavo's feeding tube and argues for a new approach in determining treatment decisions for people in a permanent vegetative state. Examination of the duty to respect living people as persons rather than as objects reveals that people in a permanent vegetative state are particularly vulnerable under our current statutory and case law to being kept alive only in service to the interests of others. The article proposes that we replace the current legal presumption in favor of continued life support with a presumption to discontinue it for those in a permanent vegetative state and that judicial or quasi-judicial review be brought to bear on decisions in favor of continued life support, particularly tube feeding.

I have not read the article, but the suggestion that a non-instrumental approach to human life requires a legal presumption in favor of death certainly grabs one's attention.

Rob

Online Symposium: Araujo on the Rule of Law

Here is another contribution to our MOJ symposium on the jurisprudential legacy of John Paul II.  Fr. Robert Araujo (Gonzaga) writes:

For John Paul II, the rule of law is essential to the survival and welfare of the human race. The rule of law represented for him how faith and reason combine to develop those normative principles by which individuals, communities, and States flourish in a realm where the transcendent and objective moral order rather than human caprice directs our public and private actions.

Human history, especially in recent times, has been affected by monumental developments in international relations, national development, and scientific advances that have had major impacts on the human race. The rule of law has had a proper role in harnessing and directing these developments so that self-interest or whim has not threatened the dignity of the human person, the unity and solidarity of the human family, and the advancement of the common good. The rule of law, then, serves as a guarantor and “creative force” (as the Holy Father stated in the first year of his Pontificate) in this context. The rule of law offers stability to the members of the human family when they are buffeted by the storms of life that seem intent on embroiling one and all in tempest after tempest. The rule of law is an anchor, a rudder, and a sail. Without the rule of law, the vessel of life founders on the tough and unjust shoals of life.

As John Paul recognized, the rule of law is not ignorant of the tensions and conflicts that permeate human existence. If can, when based on the transcendent and objective moral order, provide the truth needed to stabilize and plot a correct course. Its objectivity is essential to providing for the suum cuique—to each his or her due that is fairly, equitably, and justly determined. The rule of law is built upon the sturdy edifice of faith and reason—of heart and mind. It provides the authentic foundation in which new problems that plague humanity can be met in a judicious and unprejudiced fashion. When all is said and done, the rule of law provides the means to overcome

Babel

and deal with the common demands of humankind. This requires putting aside the differences of personal favoritism and appealing to those “higher faculties” which enable and ennoble the human person to live in concert with fellow beings. Regardless of the particular dispute or the ongoing strife, this rule of law provides the way that comforts and consoles the fair-minded. It is that which enables the person and the community of which he or she is part to address judiciously division and to forge understanding.

It is the rule of law which enabled John Paul II to send forth his emissaries into a world frequented by division to search for common ground and to apply sound reason to address famine, disease, war, illiteracy, and misunderstanding. For the Holy Father, this was the essence of the genuine development of the human race. Through the appropriation of this process, the entire human family and each of its members can flourish, but without it, each person and the community faces peril. While the individual person is the beginning of human destiny and dignity, it is not the only goal. For, man’s social dimension needs to be respected, as the Holy Father noted on so many occasions, and, within a Christian context, the completeness of the person cannot be achieved until self-centeredness is rejected. By overcoming the temptation of exaggerated individualism, the rule of law leads to the natural complementarity of the self in the “authentic social perspective.”

For it to succeed, the rule of law cannot ignore the moral concerns and values that celebrate each and every person—no matter how small, how old, how young, or how alert. That which threatens and consumes the one can eventually menace and destroy all. This is why the rule of law must recognize subsidiarity and solidarity in a simultaneous fashion. God created diversity, and His creation must be celebrated; however, this multiplicity cannot be properly understood until it is commonly accepted that the individual relates to the larger tapestry of life. And the rule of law plays an essential role in recognition of this. That is why the rule of law must promote and protect the family as the basic unit of society: for this is the place in which the individual first meets the community; where the individual begins to enjoy individuality in a loving social context. When the family becomes oppressed, hope for the future and prosperity of the human race becomes doubtful.

The rule of law is compromised when society cares only for some but not all of its members; then, it loses its stability and moral authority. It is at this juncture when caprice and its allies, brute force and disrespect for conscience, take control. The result is barbarism. The antidote to this crisis for John Paul is Jesus Christ. It is the Christian sense of right and wrong that ultimately recognizes the truth of the human condition and the destiny of humanity’s members. Christ draws all; all are drawn to Christ. As John Paul noted, when Jesus was asked the question: “Who do people say that I am?”, only Peter got it right: “You are the Christ, the Son of the living God!” It is through the Christ that the individual is celebrated in his or her inextricable bond with that and those that are beyond. It is Jesus who shows each person the way to God because he is simultaneously of that person and of God.

As the Holy Father said at the beginning of his Pontificate, “allow me to invite you to listen to the voice of Christ, to the message of the Gospel concerning man. It cannot but strengthen you in your desire to build a world peace through law.” And, to this, I say: Amen!

Rick

Online Symposium: Coughlin on JP II and Human Dignity

The first of (what we hope will be many) contributions to MOJ's online symposium on John Paul II's jurisprudential legacy comes from my friend and colleague, Fr. John Coughlin.  In a published paper, "Pope John Paul II and the Dignity of the Human Being," Harv. J. L. & Pub. Pol'y (2003), Coughlin writes:

[L]ong before his election as Pope, Karol Wojtyla was developing his understanding of the dignity of the human person in his philosophical and theological writings.  In a 1968 letter to the French theologian Henri de Lubac, Wojtyla wrote, “The evil of our times consists in the first place in a kind of degradation, indeed in a pulverization, of the fundamental uniqueness of each human person. This evil is even much more of the metaphysical order than of the moral order. To this disintegration, planned at times by atheistic ideologies, we must oppose, rather than sterile polemics, a kind of "recapitulation" of the inviolable mystery of the person . . . .” 

The belief that each human being possesses a metaphysical value simply in the fact of his or her existence remains at the root of John Paul II's indefatigable defense of human dignity. . . . 

The philosophical foundation for John Paul II's defense of the dignity of the human being begins with two ancient truths. First, it posits the universality of one human nature that transcends the limits of history and culture. One must admit that, historically, the idea of the universality of human nature has stemmed from Aristotelian cosmology, which mistakenly understood the universe as fixed and immutable.  Because he desires a philosophical approach consistent with the modern scientific method, John Paul II attempts to retrieve essential aspects of the tradition through the adoption of a radical realism and the human capacity to know it. His philosophical method requires a turn to the human subject and a phenomenological analysis of the somatic, emotional, intellectual, and moral dimensions of human experience.  Nonetheless, he refuses to embrace a skepticism that denies the possibilities for the apprehension of truth in the human intellect. Rather, John Paul II's reflection on experience leads to his affirmation of a universal human nature and permanent natural law contained within the human person.  In his view, the dignity of the human person, human rights language, and an objective moral order all depend on the universality of human nature.

Second, John Paul II accepts the classical metaphysical view, which understands the human person as characterized by the intellect and free will. In accordance with the modern starting point, John Paul II believes that reflection on human experience reveals the human being as a dynamic and irreducible unity of body and spirit.  The intellect signifies the interior consciousness of the human being in which the multi-faceted interplay of somatic, emotional, reasoned, aesthetic, and spiritual awareness form the concept of self in relation to others and to the world.  Free will means that the human being may pursue goals identified in the intellect to constitute oneself through action.  The interrelatedness of the intellectual and intentional faculties enables the human being to constitute oneself in accordance with the understanding of value recognized through the intellect and appropriated through the intentional act of the will. In Pope John Paul II's understanding, each human person remains "a remarkable psychophysical unity, each one a unique person, never again to be repeated in the entire universe."  John Paul II thus understands the dignity of the human being both in an objective and in a subjective sense. The objectivity derives from the universality of human nature according to which every human person possesses the potential for intelligent and free action. The subjectivity flows from the fact that the human being may employ the intellect and will creatively to constitute the individual self. . . .

The philosophical foundation of Pope John Paul II's defense of human dignity has metaphysical, existential, and moral dimensions. The universality of a transcendent human nature affords a metaphysical foundation for the dignity and worth of each human being. Existentially, the human being acts through the intellect and will to create a sense of self in concrete historical circumstances. The creative freedom of the human being is enhanced to the extent that the will acts in accord with the objective moral order understood in the intellect. Theologically, John Paul II sees the human being as created in the image of God, conflicted as a consequence of freedom to choose between good and evil, redeemed by the perfect love of Christ, and living in the present time with the hope of the absolute consummation of this love. Considered together, the philosophical and theological foundations constitute a sturdy conceptual structure on which to rest human dignity. It is upon this structure that the Universal Pastor of the Catholic Church has relentlessly preached his message of human dignity to the four corners of the earth.

Fr. Coughlin has also discussed the jurisprudential implications of John Paul II's work and thought elsewhere, including, e.g., "Natural Law, Marriage, and the Thought of Karol Wojtyla," Fordham Urban Law Journal (2001).

Rick

Interesting Response to Martin Marty

[Thought MOJ readers would be interested in this response to my earlier post today.]

Dear Dr. Perry,

I respect Martin Marty and agree with him that "attention-grabbing Catholic
defense leagues" (doubtless a thinly-veiled reference to the organization
headed by William Donohue) sometimes cry wolf.

But if Marty did not find "a single inch of print showing Protestants
attacking the pope or Catholicism" over the last two weeks, then he's missed
commentary by high-profile Calvinists like Dr. James White, and high-profile
Baptists like Dr. Al Mohler, neither of whom can be lumped with "creepy,
crawly commentators at the outer edge of cyberspatial blogs."

White saw the death of the pope as an opportunity for other Christians to
convict Catholics of our alleged doctrinal errors. Mohler complained that
Protestants have been too cozy with Catholics of late, and that the pope
paid too little attention to issues of concern to other Christians. Both
were outspoken critics of Catholicism even before the pope's death, and both
(along with pastor Mark D. Roberts, a frequent guest on Hugh Hewitt's
popular radio show) take a dim view of the renewed Protestant interest in
Mary, the mother of Jesus.

In other words, while Marty is right that Catholicism's harshest critics
come from within her ranks, his optimistic assessment of a thaw in
relationships between Catholics and Protestants, while not unreasonable, may
nevertheless be premature.

Along similar lines, this may be of interest:

http://www.spectator.org/dsp_article.asp?art_id=7989

Best,

Patrick O'Hannigan
"The Paragraph Farmer"

http://paragraphfarmer.blogspot.com/

Martin Marty on JP II, Catholics, and Protestants

Sightings  4/11/05

Protestants and the Pope
-- Martin E. Marty

Twenty-five percent of polled Americans "prefer" being Catholic, fifty percent prefer being Protestant/Evangelical, and the rest prefer "other" -- Muslim, Jewish, Mormon, Orthodox, or none of the above.  How did the Protestant half behave after Pope John Paul II died?  I could be blindsided in the time between the early deadline for this column (Wednesday) and its appearance on Monday.  It could be that my many, many sources missed something.  Help me out if I missed something, too.  But among the thousands of column spaces given to the pontiff, I did not find a single inch of print showing Protestants attacking the pope or Catholicism.

Of course, some Protestants may have made incidental generic criticisms of some papal policies, but they were not as severe as Catholic criticisms.  Beyond that, of course, you can find some creepy, crawly commentators at the outer edges of cyberspatial blogs.  They represent no one and report to no one.

From this I draw a conclusion, one that I hope the past week reinforces.  These years, there is very little criticism of Catholicism and the pope from the Protestant half of America.  And I formed a resolve: henceforth not to pay much attention to any attention-grabbing Catholic defense leagues.  Weigh in -- as I have not -- against vouchers that Catholics might use for parochial education, or join millions of Catholics in criticizing policies that have political implications (such as banning birth control education) and you get tabbed as a Catholic-hater.  This past week's responses by grieving Protestants robbed defense leagues of credibility.  Americans can resume political debate across denominational lines, and criticize each other without being accused of being "anti-."

Why, you ask those of us with long memories, is the absence of Protestant sniping today not being remarked on?  First, for doctrinal reasons: That the pope is the antichrist -- official teaching in historic confessions of many Presbyterian, Reformed, Lutheran, Baptist, etc. bodies -- remains on the books of some who have not tidied up these old statements.  But some Lutherans who still have the pope as antichrist on the books now address him or speak of him as "dear brother in Christ," seeing him as an ally, for example, in opposing laws allowing for abortion.

More on why it is unremarkable: Note that most criticism over the papacy's slowness and lightness in respect to the priestly abuse scandal or any number of other churchly issues comes from Catholics, not Protestants.  These issues are seen as in-house Catholic affairs by outsiders who live in glass houses.

Still more on why it is unremarkable that Protestants didn't exploit the moment to go public with attacks on the pope, the papacy, and Catholicism: The combination of good manners and social graces during mourning periods after losses through death evokes natural empathy for the mourning family.  Even mild critics hold their fire.  There were tears and sympathy and silence.

What is remarkable is the degree to which suspicion of the papacy, criticism of the popes, and attacks on their persons have diminished thanks to ecumenical bonds among mainstream Protestants and Catholics -- and also thanks to political alliances and moral coalitions among Evangelicals and Catholics, who saw the pope at the pinnacle being a favored figure.

Martin E. Marty's biography, current projects, upcoming events, publications, and contact information can be found at www.illuminos.com.