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.

Sunday, April 24, 2005

Pope Benedict on Fear and Freedom

By Rick Garnett

I am growing more hopeful that the caricature of Pope Benedict that's being constructed and bandied around in some quarters (e.g., the fever swamp that is Maureen Dowd's column) won't survive open-hearted examination of and engagement with what he says, writes, and has written.  (Which is not to say that I expect all informed people of good will to embrace all that Benedict proposes).  We'll see.  In any event, here is a short passage, taken from his inaugural homily, that connects well and in interesting ways with some matters that we've talked about many times here at MOJ:

[M]y mind goes back to 22 October 1978, when Pope John Paul II began his ministry here in Saint Peter’s Square. His words on that occasion constantly echo in my ears: “Do not be afraid! Open wide the doors for Christ!” The Pope was addressing the mighty, the powerful of this world, who feared that Christ might take away something of their power if they were to let him in, if they were to allow the faith to be free. Yes, he would certainly have taken something away from them: the dominion of corruption, the manipulation of law and the freedom to do as they pleased. But he would not have taken away anything that pertains to human freedom or dignity, or to the building of a just society. The Pope was also speaking to everyone, especially the young. Are we not perhaps all afraid in some way? If we let Christ enter fully into our lives, if we open ourselves totally to him, are we not afraid that He might take something away from us? Are we not perhaps afraid to give up something significant, something unique, something that makes life so beautiful? Do we not then risk ending up diminished and deprived of our freedom? And once again the Pope said: No! If we let Christ into our lives, we lose nothing, nothing, absolutely nothing of what makes life free, beautiful and great. No! Only in this friendship are the doors of life opened wide. Only in this friendship is the great potential of human existence truly revealed. Only in this friendship do we experience beauty and liberation. And so, today, with great strength and great conviction, on the basis of long personal experience of life, I say to you, dear young people: Do not be afraid of Christ! He takes nothing away, and he gives you everything. When we give ourselves to him, we receive a hundredfold in return. Yes, open, open wide the doors to Christ – and you will find true life.

John Paul II's encouraging words -- "Be Not Afraid!" -- have always struck me as a central theme of his papacy.  Some have suggested that Benedict might retreat from hope and optimism -- back to the Catacombs! -- or that his is a defensive vision of retreat, disengagement, hunkering down.  It does not appear this way to me.  After all, what could be more energizing, and inspiring, than an inaugural proclamation that "friendship" with Christ makes life "free, beautiful, and great"?

At the heart of any Catholic legal theory, it seems to me, is going to be a focus on designing structures that promote "ordered liberty", or freedom appropriately informed by Christian humanism and the common good.  In our "rule of law" traditions, we have long reflected on the insight that the constraints imposed by law should and ideally do facilitate the freedom that the legal enterprise seeks.  I hear Pope Benedict saying much the same thing.

Rick

Saturday, April 23, 2005

Steinfels on Benedict XVI

By Michael Perry

The final part of the Steinfels article I featured in my post earlier today bears quoting here:

Some people have already written off Benedict XVI, while others are rushing almost to canonize him. Pending a clearer sense of his own vision of the world and of the priorities such a vision suggests, both reactions seem premature.

In a televised interview eight years ago, cited in John Allen's book "Conclave" (Doubleday, 2002), one high-ranking Catholic official gave a rather minimal view of what Catholics should automatically assume about a newly chosen pope. Asked whether "the Holy Spirit plays a role in the election of the pope," the official replied, "I would not say so in the sense that the Holy Spirit picks out the pope, because there are too many contrary instances of popes the Holy Spirit would obviously not have picked."

"The Spirit's role should be understood in a much more elastic sense," the official added. "Probably the only assurance he offers is that the thing cannot be totally ruined."

That official was Cardinal Joseph Ratzinger, now Pope Benedict XVI.

Michael P.

"When a Killer Wants to Die"

By Rick Garnett

The latest issue of Time magazine has an article on "Death-Row Volunteers."  (The article focuses on the case in Connecticut of Michael Ross).  Here is an excerpt:

A sentence of death and a killer ready to die would seem a perfect partnership. With condemned inmates around the country spending an average of 10 years wading through appeals, both the state and the convict can get impatient. Since the Supreme Court reinstated the death penalty in 1976, almost 12% of all U.S. executions have been of so-called volunteers, murderers who plead guilty and ask for death or, more commonly, waive their appeals. As death houses around the country begin to crowd with volunteers, however, their presence raises questions about whether a justice system can be fair when it is distorted by demands from the condemned.

In a climate of growing unease over the death penalty--New York's legislature rejected it last week, a month after the Supreme Court ruled against juvenile executions--the volunteers don't please either side of the debate. For the tough-on-crime crowd, they raise the unsettling possibility that for some criminals death may not be the ultimate punishment. The judicial establishment is more comfortable executing convicts when the appeals process has been lawfully exhausted so the state doesn't appear bloodthirsty. For their part, death-penalty opponents say volunteers are really victims, too brutalized by life on death row to know what they're doing. And in some cases, volunteers have reintroduced executions in parts of the country that had long resisted carrying them out.

For my own views on the subject, see this essay.

Rick

The Immorality of Textualism?

By Rick Garnett

This new paper, "The Immorality of Textualism," by Professor Andrei Marmor, caught my eye.  Here is the abstract:

In this short essay I argue that textualism, as a doctrine of statutory interpretation, is inherently deceptive and therefore immoral. Textualism is typically presented by its adherents as an interpretive practice that is motivated by respect for democracy and respect for the authority of the legislature. But in fact, textualism's preoccupation with ordinary meaning and literal application of statutes is motivated by constraining the legislature's ability to pursue broad regulatory policies. Authorities do not want to be understood literally. Authorities purport to govern, and governance requires cooperation in the spirit of its goals, not strict adherence to the letter of its directives.

The key to the argument, I suppose, is the claim that the "motivation" behind textualist approaches to statutory interpretation is a desire to "constrain[] the legislature's ability to pursue broad regulatory policies" and not a "respect for democracy."  To which I might respond, "no, actually it *is* respect for democracy."  What comes next?

Rick

Jeb Bush and Conscience

By Rob Vischer

Governor Jeb Bush adds his own perspective to our ongoing conversation on Catholics and conscience:

Whether it is the war in Iraq or the death penalty, Florida Gov. Jeb Bush says he is given "pause" when the policies he and his brother support run against the views of the Roman Catholic Church.

Bush, who converted to Catholicism to share the faith of his Mexican-born wife Columba, will lead the U.S. delegation to the inauguration of Pope Benedict on Sunday on behalf of President Bush.

"I get uneasy when the Vatican writes me letters when a death penalty case is about ready to take place in Florida. I'll be honest with you, that gives me pause. It makes me pray harder,'' Bush told reporters in Rome on Saturday.

"Even though it's the law of our land and I have a duty to uphold that law, when there is a conflict .. it does give me concern."

This passage raises several questions. Is Bush conceding that his policies are actually in conflict with Church teaching? If so, does he excuse his failure to seek to change those policies on the ground that he has "a duty to uphold the law?" If so, is there a meaningful difference between Jeb Bush and Mario Cuomo when it comes to their conception of a Catholic politician? (Cuomo, I believe, recounted how he agonized over the abortion question before defending his pro-choice position.)

Rob

Recommended Reading: Peter Steinfels

By Michael Perry

In today's New York Times, Peter Steinfel's "Beliefs" column is very interesting and provocative.


What Does the Selection of the New Pope Portend for American Catholic Youths?

By PETER STEINFELS

 
 
 

In the days after Pope John Paul II died, only his role in helping bring on the collapse of Communism earned more comment than his gift for reaching young people with the challenge of the Gospel.

That testimony, along with the images of youthful backpackers swelling the crowds of mourners in St. Peter's Square, stirred memories of things witnessed firsthand in Denver 12 years ago at World Youth Day, and elsewhere.

But those recollections only made it all the more jarring to be simultaneously poring over a National Study of Youth and Religion, undertaken at the University of North Carolina, and its findings about American Catholic teenagers - findings that raise obvious questions about the way leadership will be exercised in the papacy of Benedict XVI.

Those findings have recently been published in "Soul Searching: The Religious and Spiritual Lives of American Teenagers" (Oxford University Press, 2005), by Christian Smith and Melinda Lundquist Denton. With a mixture of good news and bad news that punctures many stereotypes about adolescent religious beliefs and behavior, this extensive study deserves attention for what it reveals across the full range of American religious groups.

But what leapt out during this papal transition was that the researchers had felt compelled to devote a separate chapter to their discovery that Catholic teenagers "stand out among the U.S. Christian teenagers as consistently scoring lower on most measures of religiosity."

On various questions about beliefs, practices, experiences and commitments, the researchers found Catholic youths "scoring 5 to 25 percentage points lower than their conservative, mainline and black Protestant peers." In-depth interviews showed many of these Catholic adolescents "living far outside of official church norms."

Catholic teenagers were far less apt to affirm belief in a personal God, to report having ever undergone a very moving, powerful worship experience, or to say their faith was extremely important in shaping their daily lives or major life decisions.

There has been a lot of impressionistic talk, often verging on boosterism, about a new "John Paul II generation" of deeply committed, conservative young Catholics. So what should be said about this quite different-looking crop of John Paul II teenagers? How did this happen on the watch of the very pope who undeniably exhibited such magnetism among youth?

[Keep reading ... click here.]

Michael P.

Magazines

By Rick Garnett

Many of us here at MOJ learn a lot from, and often post links to articles in, a number of good, small magazines.  I was reminded, during a conversation last night with a writer for one of these magazines, that, well, they need money.  So, I'd encourage MOJ readers to think about supporting, by subscribing to, some of these publications, like (to name just a few) America, Commonweal, First Things, and Books & Culture; and The New Republic and National Review.

Rick   

Blog Fog bragging rights: philosophers win round one

By Michael Scaperlanda

Using words like supercalifragilisticexpialidocious and antidisestablishmentarianism, the philosophers at the Ethics and Culture blog have claimed "bragging rights," suggesting that their command of the written word and its use in elite circles (the world of blogging) far exceeds that of the lowly lawyers here at MOJ.  Here is John O'Callaghan's victory email:

Dear Michael,

In response to your question about how the Ethics and Culture blog fogs, on Gunning Fog we come out at 12.94 beating out your 12.22.  On Flesch-Kinkaid we come out at 9.22 to your 8.54.  On the Readability scale we land solidly at 62.74 to your fairly unreadable 57.11, recalling that one is to aim for a score between 60 and 70.  I suspect, however, that none of the scales take account of our use of Latin, as they simply seem to count syllables.  Shouldn’t our use of Latin on the one hand decrease our readability, and yet increase even further the gap between us and MOJ for level of education necessary to read and understand the page?  ;-)

Yours, John

As the spring semester winds down, its time for a little jocularity!

Friday, April 22, 2005

Shakespeare, Nietzxche, and the Fog Index

By Michael Scaperlanda

Our friend, Notre Dame philosophy professor, John O'Callaghan, writes:

"I am having too much fun avoiding work by playing with that readability page that you linked to.  The contributors to the MOJ ought to pride themselves on the fact that Act 3, scene 1 of Hamlet, which contains the “To be or not to be” soliloquy comes out on the Gunning-Fog grade index at a fifth grade level, while on the Flesch-Kinkaid grade index it comes out at a second grade level.  And on the Flesch reading ease scale, it comes out rather highly, scoring well above 70 at nearly 90; but if good writers are supposed to aim on that scale for a score between 60 and 70, I suppose we would have to grade old Shakespeare as a pretty simplistic writer.  Thus the second graders can probably understand it, though they will find it perhaps a little too boring for their tastes.  The first part of Nietzsche’s Beyond Good and Evil, “On the Prejudices of the Philosophers,” on the other hand, puts all of you to shame as on the Gunning-Fog it comes out as about senior year in college, while on the Flesch-Kinkaid it comes out as senior year in high school.  And on the readability scale it comes out at about 50, which tracks pretty well with my experience of trying to teach it.  Seniors can understand it, though they find it pretty dense.  More proof that good education should start kids on Shakespeare sometime before the age of 10, and wait until college to give them Nietzsche."

I wonder how his blog rates on these indices?

More Thoughts on Americans, Catholics, and Conscience

By Rick Garnett

For starters, Professor Steven Smith has written several interesting papers -- available at SSRN -- on the problem of conscience.  In "The Tenuous Case for Conscience", he writes:

If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably "freedom of conscience." But some observers also perceive a progressive cheapening of conscience - even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke "conscience," do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what "conscience" is or why it matters?

This essay addresses two questions. The first is discussed briefly: what is "conscience"? What do we have in mind when we say that someone acted from "conscience"? A second question receives more extended discussion: granted its importance to the individuals who assert it, still, why should "conscience" deserve special respect or accommodation from society, or from the state? That question forces us to consider the metaethical presuppositions of claims of conscience. The discussion suggests that claims to conscience may be defensible only on certain somewhat rarified moral and metaethical assumptions. The discussion further suggests that shifts in such assumptions have transformed the meaning of claims to "freedom of conscience," so that such claims typically now mean almost the opposite of what they meant when asserted by early champions of conscience such as Thomas More, Roger Williams, and John Locke.

In "Interrogating Thomas More:  The Conundrums of Conscience," he writes:

The martyrdom of Thomas More for refusing to take an oath affirming Henry VIII's marriage to Anne Boleyn and his supremacy over the church has fascinated historians, playwrights, and their readers. Why did More refuse, at such sacrifice to take an oath that nearly everyone in the realm (including More's family and friends) had taken - and that they regarded him as obstinate and absurd for not taking? Why did More refuse to explain the reasons for his refusal, even to close family and friends, beyond saying that they were reasons of "conscience"? And how can More's eloquent affirmation that he would "leave every man to own conscience" and that "every man should leave me to mine" be reconciled with his active persecution and execution of Protestants whose consciences impelled them to embrace what More regarded as heresy? This essay investigates these questions and reflects on their significance for modern commitments to (and difficulties with) the idea of "freedom of conscience."

In another vein, but also on the question of conscience, I'm very grateful to Steve Shiffrin, for his note, and also to Rob Vischer for his response.  I'd offer just three, minor thoughts about their exchange.

Steve writes to Rob:  "You seem to suggest that Catholic legal theory can help to lead American Catholics away from their disagreements with the Vatican.  What I like about the Mirror of Justice site is that it brings together people who bring quite different Catholic perspectives to the site.  Your comment seems to suggest that Catholic legal theory is committed to the view that American Catholics are wrong."  To which Rob replies:  "I think it's important that we help elucidate connections between the Gospel and our real-world environment, particularly connections that run along our legal and political cultures, challenging each other to reflect more deeply on what it means to follow Christ in the modern world.  More often than not, this effort will be directed toward encouraging Catholics to recognize the wisdom of Church teaching on a range of issues that are given short shrift in the current climate (notably war, materialism, and poverty, not just sexuality).  At other times, though, Catholic legal theorists may challenge the Church to recognize overlooked or potentially misconstrued implications of the Gospel."

I think it is worth remembering -- because, in the last few weeks, the press covering the death of Pope John Paul II and the election of Pope Benedict XVI rairly has -- that not all "American Catholics" disagree with "the Vatican."  (I'm putting aside the additional point that many American Catholics who profess disagreement with "the Vatican" -- I'm certainly not talking about Professor Shiffrin or any of my MOJ colleagues here -- have, I think, been misinformed by the press about what "the Vatican" claims and teaches.  The coverage of Pope Benedict's pre-election theological work -- on, for example, "Truth and Tolerance" -- has, in my judgment, been egregiously bad in this respect). 

Maybe I'm being pollyannish, trying to paper over differences, but -- as one would hope, I suppose -- most Catholics believe and assent to most of what the Magisterium holds out as the crucial content of the Catholic faith:  We have been redeemed through the saving work of Jesus Christ, who is Lord, who has gifted us with the Church and its sacraments.  And, in many cases, I imagine that American Catholics' failure to embrace that content has more to do with lax instruction than specific rejection.  (For example, I cannot help thinking that polls revealing that a non-trivial number of Catholics do not accept the divinity of Christ probably means that 10% didn't understand the question, or has never been given even rudimentary catechesis -- not that there is a big schism between the United States and Rome on the matter).  The press loves to talk about -- and, not surprisingly, we MOJ-types often talk about -- the hot-button areas of serious, often conscientious and principled, disagreement, but I like to think that, again, the vast majority of us agree about the vast majority of the Church's teachings.

Also, it seems worth emphasizing that there is nothing uniquely "American" about contemporary rejection of -- or failure to embrace -- certain teachings regarding the Usual Suspects issues.  That is, do American Catholics tend not to embrace the Magisterium's teaching regarding contraception because they are "American," or for some other reason?  I'm not sure.

Finally, I think that there are a number of questions where (a) Catholic teaching, properly understood, poses a real challenge to "American" premises and practices; but (b) most of us would agree, despite our various differences, that part of our job here at MOJ might well be -- in Steve's words -- to "help to lead American Catholics away from their disagreements with the [Magisterium]."  To the extent that American Catholics, qua Americans, believe that (say) utilitarian reasoning can and should supply the answers to moral questions about human life and the common good, then these Americans -- however well-meaning -- are mistaken, and in need of "Catholic legal theory's" help.

Rick

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