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, June 15, 2005

Slacken the Reins of the CDF

So says The Tablet in an editorial in the issue dated June 11, 2005.  Read on:

The new head of the Congregation of the Doctrine of the Faith said in his first major statement concerning his new job that he saw it as “helping the Church see how beautiful and wonderful God’s love is”. If that becomes the tone with which the CDF approaches its work in future then Pope Benedict XVI’s appointment of Archbishop William J. Levada, who is standing down as Archbishop of San Francisco, will look truly inspired. The Pope himself, whom Archbishop Levada succeeds in this position, used to emphasise the CDF’s disciplinary rather than its evangelistic role, though he would not deny that one served the other. It is possible that any new Prefect’s best intentions do not long survive contact with the reality of the CDF’s brief, which inevitably includes the distasteful business of disciplining clergy who have gone astray.

The Pope has chosen someone with a background interestingly different from his own, chief pastor of one of the world’s most free-thinking (and free-living and -loving) cities. As an American, furthermore, he should have an instinctive feel for natural justice and due process, and no doubt an awareness that one of the major criticisms of the CDF is its perceived deficiency in that area. Theologians regularly emerge from contact with it both enraged and hurt by the way they were treated, with a profound sense of unfairness. In the literal sense, that causes scandal, for it weakens the value of the Church’s witness to justice elsewhere. The CDF’s mistake has been to understand itself as dealing only with a theologian’s opinions and hence not with the theologian as a person with rights. But for opinions read convictions, and to put someone’s convictions on trial comes very close to putting the individual on trial. That is certainly how it feels to the accused.

The CDF would silence many of its critics if it learnt to slacken the reins, and not to regard every new or unusual theological idea as automatically suspect – or “relativistic”, to use the term becoming fashionable under the new pontificate. Dialogue with the modern world cannot be conducted without risk, but the Holy Spirit is at work among the faithful and does not need a bodyguard. Catholic orthodoxy has a robust buoyancy of its own. Unconventional opinions are rarely as dangerous as those in authority seem to fear, and today’s new thinking frequently becomes tomorrow’s orthodoxy.

The challenge facing the CDF is to foster a climate in which the freedom of theological debate is respected and valued and those who put forward bad arguments are contradicted by good ones, not ordered to retract on pain of penalties. That means building up the vocation of theologian, and regarding theological speculation as a worthwhile exercise for the good of the Church, even when it asks searching questions of the Magisterium.

Every time a theologian is investigated by the CDF that climate of free exchange is diminished, and even those not accused or suspected are bound to feel the chill. The head of the CDF ought to be regarded as the theological community’s best friend in high places; and friendship does not preclude a frank word of caution where it is deserved.
_______________

Michael P.

Back to Christendom

In Commonweal, William D. Wood criticizes recent comments by Cardinal Francis George that suggested the Cardinal's embrace of a rejuvenated Christendom:

Like Pope Benedict XVI, George believes that contemporary democratic societies are awash in relativism. Indeed, George seems to believe that secularism is the same thing as relativism, and that all secular, relativist societies will inevitably meet the same end as the totalitarian societies of the Soviet bloc. For example, he likened the present pope’s coming fight against secularism to the previous pope’s fight against communism. The lesson of both, said George, is that “you can’t deliver a stable society if, in order to protect personal freedom, you sacrifice objective truth and, particularly, moral truth. It’s a fault line, and it will destabilize our societies and bring them down...as certainly as the fault line in communism effected its demise.” This is an unfortunate confusion. Secularism isn’t the same thing as relativism, and neither is tantamount to state-enforced atheism. Convenient though it may be to think so, it simply is not the case that critics of the church are committed to the denial of all objective truth. Nor are they committed to the proposition that all is permitted and nothing is immoral. The conflation of secularism with relativism is an unfortunate mistake because it misrepresents the real pastoral context in which the church finds itself. The church must find a way to engage secular and religious people who embrace alternative moral codes and values that are genuinely compelling, though they are not the codes and values of the church. This is rather harder than thundering against imaginary relativists. As Alasdair Mac- Intyre said at the beginning of the conference: “In the entire universe, there are absolutely no relativists who are not American undergraduates!” The church hierarchy would do well to take those words to heart.

More to the point, I doubt that it makes much sense, either rhetorically or substantively, to deploy “Christendom” as the category with which the church opposes secularization. As Charles Taylor emphasized in his presentation, the church, at its best, has always realized that it must express itself in different ways to different cultures and civilizations in order to be heard. I can hardly imagine a worse way to evangelize Europe than by appealing to the virtues of a politically reconstituted Christendom.

Even if treating secularism as a political problem were rhetorically effective, it is a bad idea. To address the spiritual problem of secularism, the church must deploy spiritual tools: it must present the gospel as surpassingly beautiful and worthy of love. Sometimes, I think, the church even needs to get out of the way, and let the gospel present itself as surpassingly beautiful and worthy of love. But the church never needs to promote the gospel with the tools of the state. The tools of the state are gross and coercive. The love they elicit is, by definition, disordered. It is indeed wrong-as a certain kind of Catholic is fond of pointing out-to suppose that the authority of the church flows from the political order, but it is equally wrong to suppose that challenges to that authority are best countered with the tools of the political order.

Rob

IVF = Cloning?

The Evangelical Outpost rebukes President Bush for framing the public policy debate over embryos as a government-funding issue rather than an issue of the state's moral obligation to protect embryonic human life.  The post concludes that:

Creating embryos that will never be implanted is as immoral as cloning human life for research. Whether the intention is to relieve the suffering of infertility or to pursue research in hopes of finding miracle cures, embryonic human life must not be treated as a means to an end. Innocent human beings, however they are created, deserve our protection.

You can read the whole thing here.

Rob

Do Virginity Pledges Work?

The New York Times reports on conflicting studies regarding the long-term efficacy of teenagers' promises to remain virgins until marriage.

Rob

Tuesday, June 14, 2005

Lawrence and Sexual Autonomy

Eugene Volokh has an interesting post on the implications of Lawrence v. Texas for obscenity laws, not under free speech theory, but under the Court's emergent sexual rights theory.

Rob

Income Disparity as an Anti-Poverty Tool

Continuing our conversation on income disparity, reader Owen Heslin ties his defense of growing income disparity with his perspective on the historical record:

If, in the course of human events, the only sustained decrease in poverty has been accompanied by a sustained increase in income disparity, it is quite possible that the latter may be a precondition for the former. If one could show me a period of human history where income disparity decreased, and poverty decreased, I would be more than willing to revise my opinion. But fighting poverty in our communities located in the real world must be guided by results, and not theory.

It hardly seems right to decry income disparity when history suggests it may in fact be necessary to lift people out of poverty. I know it's not right to adhere to theories that don't work, resigning the poor to sink into deeper poverty, while we pride ourselves on the Biblical rationale for doing so.

I find it difficult to believe that poverty and income disparity have never simultaneously decreased over the entire course of human history.  The French Revolution?  The New Deal?  If Heslin is correct, then shouldn't the Dorothy Day types among us be picketing for higher CEO pay and a reduced minimum wage?

And Matt Festa clarifies that the problem:

that is being reflected by growing income disparity is the lessening of mobility up and down. We live in a very demanding world that asks a lot ut of us. The people who tend to succeed in this world are highly motived and educated people. The data suggests that families tend to transmit these values better than others. Middle class and upper class families tend to provide better education for their children. How do we go about inculcating these values to those who are not exposed to them? How do we provide a better education for those that have them but do not have the means of providing them?

But isn't a mobility-focused concern regarding access to education wrapped up with some of the same economic policies that have facilitated the growing income disparity -- e.g., lower taxes making it more difficult to fully fund Head Start programs?  (For purposes of this discussion, I'm assuming that growing income disparity is a reality, then asking how Catholic legal theory should respond; the folks at Powerline have called into question Paul Krugman's initial column.)

It seems consensus may be beyond reach on this issue, so let me recast the question from the opposite premise: does anyone believe that growing income disparity, standing alone, is a problem from the perspective of Catholic legal theory?

Rob

UPDATE: Jonathan Watson offers this helpful pointer:I

I think it may help to recast the question of income disparity not as a problem in and of itself from the prespective of Catholic Legal Theory, but rather a symptom of some other problems which are definitely a concern of Catholic Legal Theory (CT). I think it would be a good idea to begin with the realistic principal that there will always be income disparity in society, no matter which form of economic system is used in a country (capitalist, communist, socialist, etc.). Catholic Legal Theory would agree, I think, with this principal, but would endeavor to insure that in spite of this disparity, those on the lower rungs of the income scale were not being unjustly deprived of those things necessary to life and spirit. The task then is to define what comprises the class of base goods; the natural goods (as I have read somewhere).  I suppose the question is really not whether an income disparity, but why an income disparity. If there is a trend whereby wealthy grow continually more so (whether or not at the expense of the poorer or middle class), why?

And PPK Blog offers a series of insightful, more narrowly framed questions.

Monday, June 13, 2005

University Faculty for Life conference

Readers might be interested in the University Faculty for Life conference that was recently hosted by Ave Maria School of Law. A press release about the conference is available on the Ave Maria website here. Highlights of the conference included two plenary talks--one by John Keown of Georgetown on "Euthanasia in Europe" and the other by Richard Wilkins of BYU on "International Law: A Threat to the Right to Life?" The conference also featured a panel discussion on the Terri Schiavo case. The conference papers will be published in University Faculty for life's annual volume.

I'd also like to encourage folks to consider joining University Faculty for Life (UFL). UFL is an interdisciplinary group of scholars that has encouraged the scholarly work of pro-life academics for 15 years. Our next annual meeting in June of 2006 will be at Villanova. I'd be happy to talk with anyone who has questions about the organization.

Richard   

School Choice Debate

There is an interesting debate on school choice going on this week over at Legal Affairs between Clint Bolick and Duke law prof Laura Underkuffler. (HT: Volokh)

Rob

More on income disparity

Several readers responded to my (and Rick's) questions regarding Catholic legal theory's take on growing income disparity (sparked by this Paul Krugman column).  Jonathan Watson writes of the particularly nefarious aspects of today's class-driven system:

My first thought runs along the historical analysis performed by Christopher Lasch in several of his books, notably "Revolt of the Elites" and "The True and Only Heaven." . . . He notes with care that the idea of meritocracy is quite modern, having begun its appearance in the early-mid 1900s. Prior to that era, there were indeed massive disparities in income between the middle class and the elite (i.e., the Carnegies), but that those elite subscribed to a theory of noblisse oblige of sorts, thus requiring them to give large amounts of money to improving communities through libraries, schools, and other sustaining institutions. True, this class was an aristocracy of sorts, but this requirement redeemed their capitalistic ethic by helping to sustain communities, by providing common places of learning and discussion. Thus did wealth sustain middle class existence, providing a base for a well-informed populace. . . . Lasch's argument is that the nouveau wealthy, who now rarely make contributions to the community that sustain and encourage all classes to a common discussion and exchange of ideas, have instead locked themselves away in suburbs where they rarely face problems which dominate other classes, and provide the conspicuous consumption that Professor Garnett observes. Other classes, encouraged by this example, seek to reach this status, thus causing the drain referenced. This meritocracy seemingly becomes self-sustaining in time. I paint with a broad brush here, where reading Lasch's works in themselves provides a better and more in-depth discussion.

Another thought which I had is that often Catholic Social Theory is obsessed (not often in a negative way) with ensuring that those in the lowest classes are paid a just wage for their work. Yet, is it possible that those in upper classes or wealthy classes may be paid unjustly too much? And if so, what is the measure of too much? Is it the acquisition of material possessions beyond what is necessary to survive? If so, much of those who inhabit the middle classes are equally damned by this measure. Is it consumption of so much wealth and material that it is a sinful measure, and are these last the equivalent? Finally, once money has gone beyond the sphere of the market in influence (thus affecting education, politics, and other areanas where a level playing field would be more desired), who could limit its influence? I would hazard to say that unjustly high wages are more damaging to a society than unjustly low wages. The problem is, of course, once money affects politics and prevents those without money from entrance into the political field of discussion, how would one who desires to change this situation or affect unjustly high wages do so? The vast sums spent on a presidential race (or any political race), reveal in some ways the difficulty.

Jason Samuel asserts that:

the "working families, " who "have seen little if any progress over the past 30 years," are not the same families [as] thirty years ago.  I would suggest though, that the "working families" of which Krugman speaks are indeed the same class of families.  To assert that working family "A" of thirty years ago is in the same predicament, having made no progress, is one I do not believe he's making, nor can he.  Working family "A," has most probably progressed upwards by their investments, or their offspring's' investments, in education and the free-market. . . . while we should be concerned when the income disparity among classes grows, we must first recognize that since human persons--with free will--are involved, a class structure should well be expected.  To want to eradicate what I have made out as inherent differences means to want to strike out the thing that makes for those differences: free will.

Finally, Matt Festa concedes that although "there is a decent amount of income movement from the "bottom" ladder to "upper" ladders," he thinks that Krugman "is right that this movement has slowed down over the past few decades."  Festa offers a few potential explanations for this:

1) Education: Jobs in the past 20-30 years have become increasingly specialized (Law, medicine, business) requiring not only bachelors degrees but often masters, phd's, law and medical degrees. this can increase income disparity b/c

a) people can't afford the higher level degrees....in economics lingo, they face borrowing constraints.

b) they don't want to get the degrees, because the degrees are hard and they are not interested

Now for the economics of it: if education is important pushing up its demand, while the supply either falls or does not rise as fast, this pushes wages for those with the degrees up. For people w/o these higher degrees, they face a lower demand and more competition and thus lower wages (although I cannot find credible evidence that there wages have fallen, they just haven't risen as fast).

2) Family structure-not only because wealthier families beget wealthier children, but also because families seem to provide strong incentives to their children to work hard and get an eduction. Single families seem to incentivize the exact opposite.

3) Culture-Thomas Sowell has written about this. Certain cultures seem pre-disposed to devalue the value of an education while others do...this probably has an effect on inner cities (where drug use and single family households seem to prevail)

But note, income disparity is not per se a bad thing. Paul [Krugman] seems to push us to choose the 1960's over today's generation. But exactly how does he expect to move back to these days. Or to put it bluntly, he seems to want to blame the whole thing on Reagan, which seems pathetically simple and naive in my opinion.

In addition, I don't see the complete breakdown in welfare that he sees. In fact, I think the general consensus of people who actually work in these areas is that many of these reforms have brought about a good amount of economic gain. Deregulation and tax simplification have incentivized work (which admittedly probably widens income distribution, but it speeds up economic growth, giving us new products and goods). But also changes such as welfare reform, which have put people back to work.

If I was emperor, I would try to open a national discussion on how to provide better education for Americans, which is admittedly hard but the right way to tackle this problem.  If you read between the lines, Paul wants something like the European solution. But the European model has given the region slow growth and high unemployment. They aren't the solution.

I appreciate these responses, though I'm woefully ill-equipped to engage anyone on economic terms.  Here's my direct response to Rick's question about why Catholic legal theory views growing income disparity as a problem:  We know the poor will always be with us (Matthew 26:11), even though being poor in America today usually means a lack of health care or decent education, rather than starvation.  Let's assume that the "rising tide" has lifted all boats, and that greater wealth among the upper classes has helped put food on the tables of the poor.  But that's not enough, is it?  If we want to take the preferential option for the poor seriously, don't we have to be able to say more than "Well, the rich may now have three luxury homes instead of two, but the poor are better off too, as they have three loaves instead of two."  If they still lack the fundamental tools needed for human flourishing, isn't the further enrichment of the wealthy (i.e., becoming even more wealthy relative to the poor than they were before) scandalous from the perspective of Catholic legal theory?  (Again, I'm not suggesting that Catholic legal theory prescribes a particular remedy, I'm just seeking to reach consensus that Catholic legal theory views growing income disparity as a problem.)

Rob

Biology vs. Community

What happens when an Amish woman has an affair with her non-Amish employer, producing a child whom both want to raise as their own? The answer's unclear, but here's the story (registration req'd). Shared custody won't help much, as the father's rights will preclude the all-encompassing community experience at the core of Amish identity. One disturbing item from the article is the suggestion by the father's attorney that the custody determination should be driven by the harm accompanying an Amish upbringing -- i.e., the child's best interests lie with the non-backward folks. I'm not sure how effective that strategy will prove with the courts; apparently the attorney has never read Justice Rehnquist's glowing descriptions of the Amish in Yoder. In any event, it's a sad case, however it turns out.

Rob