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, May 3, 2005

Thanks to John Breen, et al.

I want to second Mark Sargent's thoughts on John Breen's provocative critique of Jesuit legal education.  I am grateful to both John and Amy for their thoughtful contributions to the much-needed effort to think seriously about what it means to call a law school "Jesuit."  Like Amy, I think it's critical that Jesuit law schools find ways to be explicit about the faith dimension of our Jesuit, Catholic mission, and I'm convinced that we can (and must) find ways to be explicit in an authentically Jesuit way that is characterized by inclusion and dialogue, rather than imposition or indoctrination.  If our law schools are to be integral parts of universities in the truest sense of that word, institutions where the whole universe of human questions are on the table, then our law schools must be places where people of faith (students, faculty, adminstrators, and staff) can explicitly explore what it means to integrate their faith into their professional and academic lives, in both curricular and co-curricular settings.

Like John, I'm convinced that, if our law schools are to be places where the full range of ideas and questions can be explored and brought into dialogue with one another, then they must be places where the Catholic intellectual tradition is alive and at home -- not imposed on anyone, but present, vital, articulate, and thoroughly involved in the academic conversation that is at the heart of the life of the university.  There can be a strong tendency in the contemporary academic world with which we are all familiar to shy away from any admission of religion into the conversation out of fear of fundamentalism or authoritarianism or the marginalization of people who do not share the religious tradition of the sponsoring institution.  There is a fear that any admission of religion into the conversation will make the religious voice the predominant voice or the privileged voice or an excluding voice.  My fear is that prolonged failure to confront that fear explicitly and directly has contributed to the actual marginalization and exclusion of the religious voice.  The Catholic intellectual tradition should never be imposed on anyone in a pluralistic, inclusive academic community, but neither should the voice of that tradition be marginalized, excluded, devalued, ignored, or made invisible out of fear of offending those of other religious traditions or no religious tradition.  Instead, the Catholic intellectual tradition should have an explict, legitimate place at the curricular table of inclusive dialogue at a Jesuit law school.

My tentative hope is that at least some of the fear that makes hiring for mission such a neuralgic topic at so many places can perhaps, bit by bit, be overcome through more conversation that is open, honest, respectfully attentive to the fears that people do have, and, therefore, at least potentially transformative.  All of us who care about Jesuit education have to do a better job of helping our faculty colleagues who may be interested to learn more about the Ignatian mission and spiritual tradition and why that mission and spirituality have led Jesuits to care deeply about higher education for so long.  I'm a relative newcomer to the professional academic world, but I think the Ignatian tradition has a lot to offer the shared academic endeavor of the law school (e.g., in the classroom and in our scholarship, in clinical education, in concrete concern for justice (experiential and intellectual), in a shared community life among the faculty and in the classroom that is humane precisely because of a respect for human dignity that is rooted in the Catholic tradition that gave birth to the university as an institution, in a deeper understanding of the law as a vocation and in the law school as a culture of discernment, to name just a few areas that a range of other contributors to this conversation have highlighted in different ways).  Thanks to John, Amy, Mark and many others for moving the conversation forward in constructive ways.   

More on "Property as Entrance"

Rob is (as usual) one step ahead of me in calling MOJ readers' attention to Penalver's interesting and important paper.  A quick thought:  I usually roll my eyes when people start invoking "third ways," but -- that said -- it strikes me that there is another way of thinking about property-and-freedom, in addition to the individualistic, even atomistic, "property as exit" (a model that Penalver treats in detail), and the more community-building, bonding, "property as entrance" (the model that Penalver proposes). 

I don't have a good name for the model (yet), but this third model would be build around the claim that property and property rights enhance and protect freedom not only by facilitating individuals' exit from community -- in Penalver's words, the idea would be that property does not only allow people to "exit from community into the protective cocoon of their stuff" -- by also by playing a structural role, and serving (what in the First Amendment context is sometimes called a) "checking function."  That is, property-as-mediating-institution complicates and thickens civil society, it sets up structures in between persons and the state.  In this way, as Penalver suggests, it facilitates the construction and development not only of communities, but also of authentic individual freedom, properly (i.e., not narrowly, in hyper-libertarian terms) understood. 

As I read Penalver, his alternative to the "property as exit" model might "go too far" in the other direction.  Even after taking to heart Penalver's criticism of "property as exit", it remains the case -- it seems to me -- that property does and should be regarded as a state-checking device.  However, by checking the state (or other "too big" aggregations of homogenizing power) property does not simply leave lonely individuals free in their cocoons, it leaves groups, associations, families, churches, and communities free to thrive.

Rick

Property as Entrance

Fordham law prof Eduardo Penalver has a forthcoming article entitled "Property as Entrance," which may be of interest to those looking to transcend an exclusively individualist justification of property rights:

One of the central values of private ownership in liberal property thought is its freedom-guaranteeing function. The precise mechanism by which private property rights accomplish this guarantee, however, is frequently left unexplored. When theorists discuss the issue, they often identify property's liberty-securing quality with the power that property confers upon its owner to exit from society into the protective cocoon of his stuff. This mechanism of property as exit draws its strength from an implicit assumption that people are the sorts of beings that can withdraw from social relations into the cocoon of their property. But there are reasons to think that withdrawal would be very costly for most people. As a consequence, the power of property to facilitate exit may be substantially weaker than is often assumed. In addition, scholars' affinity for property's exit function has obscured the degree to which property works, not solely as a means of facilitating withdrawal, but also as a crucial mechanism for tying individuals into social groups.

(HT: Solum)

Rob

Monday, May 2, 2005

Breen and Uelmen on Catholic Legal Education

I want to commend to everyone who cares about the subject the article on Catholic legal education by our co-blogista, John Breen, that he blogged recently and posted under his name in the sidebar. He demolishes the claim that Catholic schools are effectively Catholic (or Jesuit) because they offer clinics or teach jurisprudence. He is equally devastating on the argument that law schools should not hire for mission. John shows clearly that the vast majority of Catholic law schools are not engaged with the Catholic (or Jesuit) intellectual and moral traditions in any serious way. An important, if depressing article.

I also wanted to comment briefly on Amy Uelmen's characteristically thoughtful post on this topic in which she responded to some previous posts. She argued that a Catholic law school must be characterized by an openness to other ways of thought and belief. I could not agree more; such openness is the characteristic of what I have been calling for years now the "inclusive", non-sectarian Catholic law school. The irony, however, is that in the real world of Catholic legal education there is no problem with openness to other (ie, non-Catholic, non-religious) ways of thought and belief; it is openness to Catholic ways of thought and belief that is lacking. I consider myself very lucky that my colleagues at Villanova have shown themselves extraordinarily willing to create a space for Catholic and other faith-based discourse in our intellectual community.

-Mark

Supreme Court grants review in military-recruiter case

The Supreme Court announced today that it will review the decision of the Court of Appeals for the Third Circuit barring enforcement, on First Amendment grounds, of the Solomon Amendment, which requires the cutoff of federal funds to colleges that refuse to give military recruiters equal access to their students.  (Thanks to Lyle Denniston, of SCOTUSBlog, for this report).

We've discussed this case here at MOJ a few times before:  Rob suggested, for example, that the Third Circuit's decision could be seen as a win for the subsidiarity principle.  (See also here).  I expressed doubts on Rob's "take" here and here (and in Commonweal magazine).

Rick

Eberle on "The Presumption Against War"

Philosopher Chris Eberle -- whom Notre Dame has been fortunate to host this academic year -- has written an interesting response to an exchange in a recent issue of First Things between Paul Griffiths and George Weigel on the "presumption against war" in just-war theory.  With Chris's permission, here it is:

. . .  Paul Griffiths expresses perplexity as to why some advocates of the Just War Tradition reject the claim that there is a “presumption against war,” and purports to provide an unimpeachable argument in support of that claim.  George Weigel rejects that argument and insists that there isn’t a presumption against war.  Both authors stumble badly:  Griffiths’ argument is anything but unimpeachable, Weigel’s denial that there is a presumption against war is deeply implausible.

Griffiths begins with the assertion that a person can be morally permitted to perform certain actions in some circumstances but not in others: she can drive after reaching the age of 15 but not before.   But if it’s the case that a person is not permitted to perform a particular action in some circumstances, then that person can’t just willy nilly perform that action whenever she wants – she has to have adequate reason to perform that action in the circumstances in which she finds herself.  That is, she shouldn’t perform that action without adequate justification.  Now it’s sometimes permissible to engage in war, sometimes not.  Hence, those who engage in war must have adequate reason to engage in war.  But that’s just what’s meant by there being a presumption against war – you can’t wage war without having the appropriate reasons to show that, in the circumstances, war is licit.  And, of course, the Just War Tradition specifies what those reasons are.

We should reject this argument, for it has entirely implausible implications – as Weigel happily points out.  Consider: I am morally permitted to snore loudly in some circumstances but not in others – for example, when I’m attending Professor Griffith’s public lecture on the Just War Tradition.  Does that imply that there is a presumption against snoring?  Hardly – snoring is a harmless activity and so there is neither a presumption for or against it, in spite of the fact that there are circumstances in which snoring is impermissible. 

But this objection to Griffith’s rather impeachable argument indicates a much better argument – one that I fancy is unimpeachable.  For unlike snoring, it’s not the case that waging war is a harmless activity. It’s unnecessary to detail the excruciating pain, dispossessed populations, and flying bits of human bone and flesh, that the waging of war does in fact inevitably involve.  Wars destroy human lives, the lives of persons with great moral worth.  Surely – surely – we should not destroy human lives unless we have very powerful reasons to do so.  And as a consequence, there is a presumption against waging war.  Weigel provides no good reason to deny anything of the sort.

He does provide a number of bad reasons – a surprisingly large number, given the limited space available to him.  Here is one such reason: those who adopt the claim that there is a presumption against war have been consistently wrong in their estimation of the justice of recent wars.  The U.S. bishops, for example, got the dynamics of the cold war wrong in their pastoral letter, “The Challenge of Peace.”  Other religious leaders and intellectuals falsely predicted disaster in the first Gulf War and the recent Iraq War.  These misjudgments are to be attributed to the reality-distorting claim that there is a presumption against war.  In fact, Weigel suspects those who adopt the presumption against war position – “that the use of even proportionate and discriminate force is, at the outset of moral analysis, presumptively deplorable – of smuggling in a “pacifist premise.”  It’s no wonder that they fail to recognize a just war when they see one. 

But Weigel’s argument is confused.  The claim that there is a presumption against war is exactly the kind of claim a pacifist should not make.  After all, a presumption – if it really is only a presumption – must be overridable by sufficiently weighty considerations.  So a dictator who uses his military power to eradicate a segment of his population is doing a really bad thing, and it might very well be the case that, if waging war on that dictator is the only feasible way to stop him from succeeding, then we ought to wage war on him.  That is, we should wage war against him even though doing so might very well involve inflicting great pain and suffering on large numbers of people and so even though there is a very powerful presumption against waging war against him.  Once we get clear that presumptions can be overridden, there is no reason whatever to believe that adopting the presumption against war position must provide aid and comfort to pacifism. 

Why is the presumption against war position important?  Not least because it’s the sober moral truth: if there isn’t a presumption against war, with all its attendant suffering, then there isn’t a presumption against anything.  But also because adopting that position distinguishes the advocate of the just war tradition from those who glorify war, who seem to regard the waging of war as an intrinsically worthy pastime, and so who need, not a reason to go to war, but to refrain from waging war.  The latter position, an all too common human failing, is corruption and the claim that there’s a presumption against war captures that judgment.

Rick

Catholics (and Other Believers) in Politics

Sightings  5/2/05

This Side of Theocracy
-- Martin E. Marty

In last week's U.S. News & World Report, Michael Barone reassured readers that the United States is not "headed toward a theocracy ....  [W]hether the United States is on its way to becoming a theocracy is actually a silly question" ("Faith in Our Future?" April 25, 2005).  He went on to claim that religion is a more up-front public and political item than it was a few years ago -- something Sightings consistently points out.  He then delivers a low blow, charging that secular liberalism in Europe produced non-benign offspring, namely, "fascism and communism [which] destroyed millions of lives before they were extinguished."  Meanwhile, "we" are religious and therefore benign.  That verbal swing aside, Barone is correct: We are probably not destined to become the predominantly secular society that liberals foresaw.

Among the reflexive minimizers of threats to a long-vibrant republic, I am also cautious about applying the term "theocracy" to where we are directly headed, but not assured by Barone's word that "no religion is going to impose laws on an unwilling Congress or the people of this country."  Is that how it would work?  For example, the vast majority of Americans want more legislation against assault rifles and other military-level armament now easily available.  But one of America's religions, ritualized and represented by the National Rifle Association, effectively lobbies and controls legislatures, "imposing laws."  Why?  Few running for office want to risk losing 10 percent of their potential supporters over guns.

That's how the system works, and it's quite legal.  What the people who whisper or shout "theocracy!" worry about is the power of religious minorities to lobby, form political combinations, gain access to legislators, and the like -- to "impose laws."  Again, this is all basically legal.  What does one do in the face of this potential, which is short of theocracy but acts "in the name of God" -- a God whose will such factions clearly know, and on whose claims they have a monopoly?

One response comes from deep in our past, in the optimistic Madisonian Federalist Paper X: "... a religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source ....." Federalist Paper LI asserts: "In a free government, the security for civil rights must be the same as that for religious rights.  It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects.  The degree of security in both cases will depend on the number of interests and sects ....."

In recent months, voices have risen from others among "the multiplicity of sects" -- "others" referring to those who are less often heard and seen in headlines and on prime-time than those who really do pitch for a theocracy as their ultimate goal.  The revived responders had been passive, caught off guard, perhaps weary from their battles decades ago when they had a voice and used it.  If they now reenter the fray, this mix of many Catholics, Jews, Protestants, evangelicals, and religious experimenters who are so often written off as "secularists" may help pose a more representative array of religious voices -- and, be assured, they will take their knocks.  That's politics, still this side of theocracy.

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

Freud and Christians' Moral Choices

Brian Leiter has an interesting post speculating that the high rate of pornography consumption among conservative Christians is best explained in terms of Freud's theory of "reaction formations."  Is this theory more broadly useful in helping explain the persistent failure of American Christians to make meaningfully different moral choices than their non-Christian neighbors?

Rob