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, June 21, 2005

Those Dreaded "Religious Views"

At the end of the article discussing Dean Rudenstine's speech, another law school dean adds his own incredible take on those religious zealots out there:

Dean Lawrence Raful of Long Island's Touro Law Center, affiliated with an Orthodox Jewish undergraduate program, doubted that strong religious belief promotes valid debate.

"What fundamentalist people don't understand is that if they take a stance based on religion, they're promoting a religious view," said Mr. Raful. "God created you to have an open mind. God gave us free will to understand science and belief at the same time, and He gave us some idea of how to live with the Ten Commandments, and then I think He said something to us like, 'Good luck.'"

I'm not even sure where to begin with this passage.  I'm fairly certain that most "fundamentalist people" understand that their religion-based stances amount to "religious views."  So what?  Does Dean Raful assume that, once he's established their status as "religious views," they are disqualified from expression in the public / legal sphere?  (See, e.g., Perry, et al.)  And how exactly can he discount the public validity of the religious views espoused by those "fundamentalist people" by offering his own explicitly religious view?  (i.e., that God just told us "Good luck" and is not actively involved in history)

As for the broader point raised by both Dean Raful and Dean Rudenstine -- that faith threatens legal discourse -- Steve Smith's "Hollow Men" thesis speaks to this better than I could.  My own experience is that faith gives lawyers and law students a foundation for their belief in transcendent principles.  I'm not saying that faith is required to create such a foundation, but I have found the foundation sorely lacking as I explore topics like ethics in the classroom.  It seems a bit strange to penalize those who enter into legal discourse actually having an articulable reason for their belief in the principles on which the system depends.

Rob

Deeper than Rudenstine

There may be interesting connections between the recent evolution-creationism debates (and posts) and Dean Rudenstine’s definition of faith as “a willingness to accept belief in things for which we have no evidence, or which runs counter to evidence we have." The source of the tension in both cases is the presupposition that one language (either that of “science” - or that of faith) is sufficient to describe human life or experience. I am recently back from a terrific conference on the Science-Faith Dialogue put together by Metanexus. (I have no hidden science background! As part of their “Global University” track I was presenting the Focolare’s two-week interdisciplinary international summer school for college and graduates students to explore the connections between faith and academic life). The tribute to Teilhard de Chardin included a terrific presentation by John Haught (Georgetown). In his recent book, Deeper than Darwin (2003), he explores how both science and religion can be bearers of “truth,” and describes science and religion as different but compatible “reading levels.” “Even though Darwinism is illuminating, it by no means tells us everything we need to know about life, even in principle.” The developing science-faith dialogue, and the description of different “reading levels” may have much to teach us as we grapple with similar arguments, and with “red state-blue state” tensions in the legal education forum.

Monday, June 20, 2005

How Elastic Is the Preferential Option for the Poor?

I appreciated Rick's pointer to the "Against the Grain's" post on the preferential option for the poor. It returns us to the argument about whether the Option (or CST in general) pushes us to the left or right on matters of economic policy -- or even our understanding of equality. The post makes the argument that anti-statist, pro-market types (ie, Michael Novak, Fr Sirico, the Acton Institute) are not AGAINST the Option, but that they believe the interests of the poor are better served by the economic policies they favor, than by pro-regulatory, market-constraining, welfarist, redistributionist policies, and, to boot, that those statist policies tend to be violative of human liberty and hence human dignity. In other words, they are merely presenting an argument over means, not ends.  Well, if that is true, of what value is the concept of "the preferential option for the poor," if it is so elastic as to contain such widely disparate economic ideologies? What does the phrase add to how we make choices about economic policies and the legal infrastructure for supporting and expressing them if it can be used so promiscuously? What sense does it make to talk about Michael Novak and a Catholic socialist both being able to invoke the preferential option for the poor?   I tend toward a pragmatism on this question -- whatever works for the poor works. Sometimes the solution is market-based, sometimes it requires government intervention. I am troubled by the reflexive anti-statism of the arguments on the right; it is a categorical hostlity that cuts far too broadly. What distinguishes the Option is its radical insistence upon attention to the poor in policymaking. What mechanism does the market possess that will ensure such attention without the state? I'm not sure that we can simply assume that a rising tide will lift all boats. Wealth creation can be a tsunami or a whirlpool in which many boats will sink.

--Mark

Mario Cuomo Rides Again

Perhaps inspired by Dean Rudenstine's "keep faith out of the law schools" lecture, Mario Cuomo has jumped into the stem cell debate with his "keep faith out of the law" solution.  It's a fairly simple plan:

the president should start by following the successful pattern established in other areas of dealing with the clash of religious and political questions, including the law concerning abortion. The right of true believers to live by their own religious beliefs will be guaranteed: no one will be compelled to use stem cell research or its products, just as no one will ever be compelled to have an abortion.

It's nice to be reassured that the abortion laws have been such a success.  More broadly, it seems that these culture wars will soon be a thing of the past if we can simply trot the esteemed Governor out as new moral quandaries arise.  See, e.g., Cuomo on cloning ("True believers will never be compelled to be cloned."); Cuomo on euthanasia ("True believers will never be compelled to end someone's life."). 

Finally, a blueprint we can all get behind!

Rob

Rudenstine Revisited

I agree with Rick's observation that there are more fundamental problems with Dean Rudenstine's argument than his failure to make room for us progressive Catholic types. The first problem is one of crude epistemology -- the kind of bald antithesis between faith and reason that fails to take into account a millenium or so of exploration of the relationship between fides et ratio. The second is apparent unfamiliarity with the complex and deeply nuanced debates over the role of religion and faith-based discourse in a liberal democracy that Mike Perry and others have advanced so constructively. The third is the failure to recognize that limitations on reasoned debate in higher education and legal education can come just as easily from the enshrining of secular shibboleths as non-debatable absolutes (as Rick suggests). The fourth is related to what I mentioned in my first post -- a truly simplistic misunderstanding of what faith means. And I do agree with Rick's last point. There would be no place in Dean Rudenstine's law school universe for what we are trying to do here -- understand the implications of Catholic faith for our understanding of the law. That pursuit neither denigrates reason nor ignores "evidence;" it engages with different traditions, and does not seek to silence them; and it insists upon our obligation to pursue truth in the face of the value skepticism and neutrality that has become the official ideology of the legal profession and academy. I hope that Brian Leiter is right in asserting that I have mischaracterized Dean Rudenstine's position, but I have my doubts. His rhetoric is at least agressive, and should not go unchallenged.

--Mark

Sunday, June 19, 2005

Faith, law schools, and Dean Rudenstine

Thanks to Mark, Michael, and Brian Leiter, for alerting us to Dean David Rudenstine's remarks (Rudenstine is the dean of Cardozo Law School) about "faith" and legal education.  Apparently, Dean Rudenstine said to a group of pre-law advisors, among other things:

"Faith challenges the underpinnings of legal education. Faith is a willingness to accept belief in things for which we have no evidence, or which runs counter to evidence we have."

Dean Rudenstine's remarks are illuminating, and frustrating, in many ways and for many reasons.  Mark noted that they are "unworthy of the dean of a religiously-affiliated law school."  I cannot help thinking that we should expect better from the dean of any law school, or from anyone tasked with informing future law students about the nature of the legal enterprise.

Put aside, for now, the fact that Dean Rudenstine seems to be working from the tired playbook according to which "faith" makes people "intolerant", is "divisive", or is at war with reason and "evidence."  (I do not share Professor Leiter's more charitable view of Dean Rudenstine's remarks).  Mark does a good job responding to these canards.  (My only quibble with Mark's post has to do with his own unhelpful -- and therefore uncharacteristic -- digs at "the Republican/Religious Right rapprochment" and the "the Bush/DeLay/Frist type of 'Christian nationalism'".  If Dean Rubenstine's comments are misguided -- and they are -- it is not simply because he failed to say nice things about tolerant Catholic progressives.)

According to the original news story, "Mr. Rudenstine said that America's law schools have a social responsibility, especially at a time of religious fundamentalism, to foster reasoned debate over the facts and science of such controversial matters. To shirk this role, he suggested, would be to leave the way clear for faith-based organizations to impose 'divisive' views."  Again, brushing past the tedious bogeyman of "divisive" faith-based organizations, I would think that law schools do indeed have a "social responsibility" to "foster reasoned debate" . . . but not just in the face of "religious fundamentalism."  Anyone remotely familiar with legal education at top schools knows that "reasoned debate" is curtailed on a wide range of subjects, and not by "religious fundamentalis[ts]."  A similar point could be made with respect to the Dean's statement that "Faith does not tolerate opposing views, does not acknowledge inconvenient facts. Law schools stand in fundamental opposition to this."  Yes, law schools should "stand in fundamental opposition to this," but do they?

Then there is the Dean's insistence that "[f]aith challenges the underpinnings of legal education," because "[f]aith is a willingness to accept belief in things for which we have no evidence, or which runs counter to evidence we have."  As Mark and Michael have already observed, this is not really what (or, not all that) "faith" is.  But is the Dean's claim really that one of the "underpinnings" of legal education is that one may believe in or accept only those "things for which we have . . . evidence"?  Or, more precisely, is his claim that we may not, as legal educators and lawyers, believe in things "for which we have no evidence, or which runs counter to evidence we have"?  As Steve Smith has argued, well and in several places, lawyers are hardly the scientists, or empiricists, that Rudenstine seems to imagine.  Lawyers make claims, craft arguments, and tell stories; they present evidence, yes, but they also stand on principles, norms, values, and morals for which -- perhaps -- they lack evidence.  Who is to say that our profession's devotion to the "rule of law" does not reflect a "faith" of the kind Dean Rudenstine seems to disparage?

Don't get me wrong:  Facts are (often) facts, and they should not be avoided, just because they are inconvenient and unsettling.  But "facts" are also complicated, and they come wrapped in context.  So, it strikes me that "faith" is hardly at war with the legal enterprise; instead, it can provide a stance, platform, or perspective from which that enterprise can be better carried out. 

I'd like to hear more from my MOJ colleagues about their views on this matter.  Dean Rudenstine's remarks, it seems to me, are a fundamental challenge to what we are about on this blog.

Rick

Update:  Here are some thoughts from Kaimi Wenger, at "Prawfsblawg", who voices concern that "Dean Rudenstine's remarks . . . are toxic in their overbreadth.  They are a set of sweeping statements of anti-religious bias, seemingly based on bigoted ideas about how religious faith operates in all people."

Here is Howard Friedman's take (at "Religion Clause"):  "Rudenstine commits a . . . fundamental error.  He assumes that religious faith is about things for which the accumulation of evidence is possible. Faith should be about fundamental values, not about historical facts or scientific theories."

The Preferential Option for the Poor

Here, at the "Against the Grain" blog, is a detailed discussion of the various interpretations given by Catholics and others to the "preferential option for the poor."

Rick

Paul Johnson on Europe

Paul Johnson's essay, from Opinionjournal, is worth a read.  Here is the conclusion (which follows a reminder that many of the original architects of the EU were believing Catholics):

The EU has no intellectual content. Great writers have no role to play in it, even indirectly, nor have great thinkers or scientists. It is not the Europe of Aquinas, Luther or Calvin--or the Europe of Galileo, Newton and Einstein. Half a century ago, Robert Schumann, first of the founding fathers, often referred in his speeches to Kant and St. Thomas More, Dante and the poet Paul Valery. To him--he said explicitly--building Europe was a "great moral issue." He spoke of "the Soul of Europe." Such thoughts and expressions strike no chord in Brussels today.

In short, the EU is not a living body, with a mind and spirit and animating soul. And unless it finds such nonmaterial but essential dimensions, it will soon be a dead body, the symbolic corpse of a dying continent.

Rick

School Choice and Religious Identity

Here (thanks to Amy Welborn) is an important and interesting article, "Big 'C' or little 'c' Catholic?", about the "struggle" of Catholic schools in Milwaukee with "identity issues" as their student bodies become more "diverse."  (The Milwaukee Journal-Sentinel is running a multi-part series, of which this article is a part, on the city's ground-breaking voucher program).  Br. Bob Smith -- a true hero of education reform -- is featured prominently. 

I strongly support school-choice programs.  And, I agree with Br. Bob that "Catholic means universal.  We've always been an immigrant church, and opened our doors to the poor."  I'm not bothered by the possibility that (a) vouchers will bring more low-income, non-Catholic students to Catholic schools and, accordingly, (b) many Catholic schools will find it pastorally and pedagogically appropriate to be sensitive to non-Catholics students' beliefs and backgrounds.  That said, this statement, by a "religion" teacher, troubles me:

"We're ecumenical," said Sue Swieciak, who teaches classes on religion and faith at the school. "We're not teaching Catholicism. We're teaching about faith and Christian values."

Swieciak does not teach about the paschal mystery, the litany of the saints, or the assumption of Mary. The religion classes have a generic feel to them.

I would think (as a parent who is about to start sending kids to Catholic schools!) that the Catholic parents who are sending their children to Ms. Swieciak's school should reasonably be able to expect sacramental preparation, catechesis, and so forth, from their Catholic school.  In a way, it sounds like Milwaukee's parochial and Catholic high schools are wrestling with the same kinds of challenges that Catholic universities and law schools confronted a generation ago.  Frankly, I hope Milwaukee's schools do a better job.

Rick

Saturday, June 18, 2005

MORE ON RUSE ON THE EVOLUTION-CREATION DISPUTE

After posting, below, my message about Ruse's book, I noticed that Peter Steinfels has a piece in today's NYT about Ruse and his new book:

Eighty Years After Scopes, a Professor Reflects on Unabated Opposition to Evolutionists

In a little over three weeks, on July 10, it will be exactly 80 years since John Scopes went on trial, charged with teaching evolution as briefly set forth in "A Civic Biology Presented in Problems" by George W. Hunter.

Echoes of this notorious "monkey trial" continue to resound: A school board in Georgia tries to put stickers on biology textbooks advising that evolution is "a theory, not a fact." A Pennsylvania school district wants science teachers to inform students that "intelligent design" is an alternative to Darwinian theory, a notion gaining support in at least 20 states, with Kansas in the lead. These publicized disputes, furthermore, are only the tip of an iceberg of passive resistance, by many school boards and teachers who want to avoid controversy, to teaching evolution at all.

Opponents of such resistance can scarcely contain their exasperation. Why won't this conflict just go away? Why must the American Civil Liberties Union, which recruited Scopes so long ago to challenge Tennessee's anti-evolution statute, still be at it? How can it be that almost half the population rejects the idea that humans have evolved, and almost two-thirds want some form of creationism taught in public school science classes?

Michael Ruse has an answer. A professor of philosophy at Florida State University, he is, by his own account, "an ardent Darwinian," who testified for the A.C.L.U. in its successful challenge to a creationist law in Arkansas.

In "The Evolution-Creation Struggle" (Harvard, 2005), Professor Ruse takes a long look at why opponents of evolution feel so threatened and why evolutionists are so surprised and perplexed at the opposition.

"The full story," he writes, "is far more complex than any of us, including (especially) us evolutionists, have realized." In his view, evolutionary thought and the strand of Christianity that rallied to oppose it were two "rival religious responses" to an existing crisis of faith stemming from the rationalism of the Enlightenment and its 19th-century sequel.

Although Darwin's own work was a model of professional science, a great deal of evolutionary thought before and after him, in Professor Ruse's judgment, deserves to be termed evolutionism, a kind of secular religion built around an ideology of progress.

That ideology was not necessarily wrong, but it threw evolutionary theory into one of the two camps increasingly dividing Christians: the liberal postmillennialists, who believed that the building of Christ's rule on earth was already under way, and the conservative premillennialists, eagerly anticipating Christ's Second Coming.

Casting the evolution-creation struggle into the framework of the postmillennial-premillennial struggle does not always make for a tidy fit. But one point becomes indisputable. From the beginning, evolutionary theory has been drenched in religion. The aggressors in the warfare between theology and science were not just religious believers insisting that their ancient Scriptures were the basis of scientific truths but scientific enthusiasts insisting that evolutionary theory was the basis for conclusions about religion.

Many of the latter were of course what Professor Ruse calls proponents of evolutionism and pseudoscience. (The biology text at the center of the Scopes trial, along with useful advice about diet and regular bowel movements, reflected eugenics, then fashionable, in warning that allowing the birth of "parasites" like the mentally and physically handicapped would be "criminal.") But as Professor Ruse notes, as genuine science no less than as pseudoscience, "Darwinian evolutionary theory does impinge on religious thinking."

The challenge to literal readings of the creation stories in Genesis is the least of it. Other elements of Darwinism go right to the heart of any belief in a caring, almighty God.

The power of strictly natural interactions of random events and reproductive advantage over huge spans of time to explain the emergence of diverse and complex life forms appears to render the guiding role of such a God superfluous. The grim picture of those life forms, including humanity, emerging through a ruthlessly cruel process of natural competition appears to render such a God implausible.

The vigorous arguments made by Darwinians like Richard Dawkins and Daniel C. Dennett to the effect that contemporary evolutionary theory has buried all traditional religious beliefs may not be conclusive, but they cannot be dismissed, nor rebutted simply by the fact that some evolutionists continue to be believers.

Then there is the debate about the "methodological naturalism" that for purposes of scientific investigation restricts explanations to findings about material nature. Does "methodological naturalism" lead inexorably to a "metaphysical naturalism" holding that material nature is in fact the whole of reality?

Professor Ruse says no. But he acknowledges that the slippery slope is there. And "though many evolutionists may themselves be willing to make the slide," he writes, "they should not be surprised when others, seeing a slippery slope from methodological naturalism to metaphysical naturalism, stop themselves at the top of the hill."

In the end, Professor Ruse's new book suggests that the religious resistance to evolutionary theory is a lot more understandable and a lot less unreasonable than its opponents recognize. The neat formula "evolutionary biology is evolutionary biology, religion is religion, and the former belongs in public schools but the latter does not" cannot do justice to the fuzzy reality of the evolution-religion hybrid.

Professor Ruse does not offer an alternative formula or delve into the church-state questions raised by proposals to include creationist or intelligent-design ideas in school curriculums. He entertains hope that Christian and atheistic evolutionists can unite in defense of the "huge overlap" in their scientific positions and in their commitment to a "postmillennial philosophy" of human progress.

But his ultimate appeal is for greater modesty and self-awareness.

"Those of us who love science," he writes, "must do more than simply restate our positions or criticize the opposition. We must understand our own assumptions and, equally, find out why others have (often) legitimate concerns. This is not a plea for weak-kneed compromise but a more informed and self-aware approach to the issue."
_______________

Michael P.