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.

Thursday, January 12, 2006

Lesser Evils and Justifications

By Rick Garnett

Here, thanks to Larry Solum, is a new paper by Professor Mitchell Berman, "Lesser Evils and Justifications:  A Less Close Look."  Here is the abstract:

This contribution to a symposium issue on justification and excuse in the criminal law comments on an article by Larry Alexander that raises a host of important and challenging questions about that paradigmatic justification known both as the “lesser evils” defense and as the defense of necessity. Most centrally, it identifies three conceptions of the justificatory class of defenses: (1) that a justification simply reflects a permission - extended for whatever reason - to do what the criminal law otherwise forbids; (2) that a justification applies to conduct that realizes a lesser evil, or avoids a greater evil, than would have occurred had the defendant complied with the law; and (3) that a defense is a justification if and only if the conduct to which it applies may be aided by a third party. Although the first view - the “permission” conception - will likely strike many readers as common wisdom, Alexander’s own ruminations about the proper shape of the necessity defense are actually premised on the second and third conceptions. This essay defends the permission conception of justifications against its competitors and teases out implications of this conception for the way that the necessity defense should accommodate defendants’ actual beliefs and motivations.

Check it out.

It could cost the Church and Society a lot, and more than money...

By Robert John Araujo, SJ

Like Patrick, I am very interested in and have been reflecting on Bishop Gumbleton’s recent statement on his past abuse and his advocacy before state legislatures. These are two distinct subjects. I share Patrick’s concerns about what happened to the young Thomas Gumbleton and the approach the young Thomas Gumbleton pursued—getting on with his life. For members of a community of lawyers, educators, citizens, and faithful (MOJ contributors and readers included), there are some other important issues with significant implications for the future that come out of his political advocacy. There are three points (surely there are more) that I would like to raise at this stage. My first point renews concerns I made in an earlier posting about changing statutes of limitations for abuse cases. If statutes are suspended or changed to address a particular issue, a number of grave legal problems will surface. Just to mention a few, they could include: discrimination; equal protection denial; and ex post facto matters. Moreover, anyone interested in and mindful of the justification for statutes of limitations should be concerned with the implications of the bishop’s advocacy. A second point brings up the question about what are the other activities that the bishop is pursuing to help the Church—his flock—with the new cases that may be filed if his advocacy results in the suspension or repeal of statues of limitations. By itself, the bishop’s activity does little to help the larger Church, universal and local. A shepherd has a duty to protect his flock—all members of his flock who have done no wrong. A third point pertains to Church governance. The bishop is a member of the college of bishops, and I would like to know more about how and when he discussed his advocacy plans with his fellow bishops, including the archbishop he assists. This point brings up a related matter, and it deals with how he discussed his legislative activities with the faithful to whom he ministers.    RJA sj

PB16's World Day of Peace message

By Rick Garnett

Pope Benedict XVI's Message for the World Day of Peace 2006 is available here.  I'm struck by the interesting -- and, I think, important -- connection the Pope identifies and explains between a just peace and the truth about the human person.  (The Message's theme is "in truth, peace.")  Here is a taste:

The theme chosen for this year's reflection—In truth, peace — expresses the conviction that wherever and whenever men and women are enlightened by the splendour of truth, they naturally set out on the path of peace. The Pastoral Constitution Gaudium et Spes, promulgated forty years ago at the conclusion of the Second Vatican Council, stated that mankind will not succeed in ''building a truly more human world for everyone, everywhere on earth, unless all people are renewed in spirit and converted to the truth of peace''.(2) But what do those words, ''the truth of peace'', really mean? To respond adequately to this question, we must realize that peace cannot be reduced to the simple absence of armed conflict, but needs to be understood as ''the fruit of an order which has been planted in human society by its divine Founder'', an order ''which must be brought about by humanity in its thirst for ever more perfect justice''.(3) As the result of an order planned and willed by the love of God, peace has an intrinsic and invincible truth of its own, and corresponds ''to an irrepressible yearning and hope dwelling within us''.(4)

4. Seen in this way, peace appears as a heavenly gift and a divine grace which demands at every level the exercise of the highest responsibility: that of conforming human history—in truth, justice, freedom and love—to the divine order. Whenever there is a loss of fidelity to the transcendent order, and a loss of respect for that ''grammar'' of dialogue which is the universal moral law written on human hearts,(5) whenever the integral development of the person and the protection of his fundamental rights are hindered or denied, whenever countless people are forced to endure intolerable injustices and inequalities, how can we hope that the good of peace will be realized? The essential elements which make up the truth of that good are missing. Saint Augustine described peace as tranquillitas ordinis,(6) the tranquillity of order. By this, he meant a situation which ultimately enables the truth about man to be fully respected and realized.

Rick

a new Catholic Charities case

By Richard Myers

An intermediate appellate court today rejected (by a 3-2 vote) the arguments by Catholic Charities of Albany that New York's law mandating that it provide coverage for contraceptives violated its constitutional rights. This ruling, here, is consistent with the California Supreme Court's ruling in a similar case. Susan Stabile's article on this topic was cited by both the majority and the dissent.

A volume just published by the Linacre Center, Cooperation, Complicity & Conscience (Helen Watt ed. 2005), contains a discussion of the moral and legal issues raised by this case. My contribution to the volume deals with US law and conscientious objection in health care. Information about how to obtain the volume is available on the Linacre Center's website.   

Richard

More on Subsidiarity and Katrina

By Rob Vischer

My colleague Elizabeth Brown takes issue with my subsidiarity-driven endorsement of New Orleans' plan to allow residents to redevelop in any area of the city for a period of one year, subject to the city's right to close down sections that don't achieve a critical mass of redevelopment:

If the residents were assuming ALL of the costs for bringing back their neighborhoods, it would be a legitimate plan. The principle of subsidiarity holds that nothing should be done by a larger and more complex organization which can be done as well by a smaller and simpler organization. Subsidiarity only works when those at the local level not only have information about their own wants and needs but the means to implement their decisions when freed from top down constraints. That is not the case in New Orleans.

Unfortunately, citizens who build in flood plains (and the entire Ninth Ward is a flood plain) do not bear the entire costs for locating their homes and businesses there. The cost of the levies which have been constructed and maintained by the Army Corps of Engineers is borne by a much wider group than the impoverished residents of the Ninth Ward.  It is borne by you and me and a significant portion of the population outside of Louisiana.  To build levies that could withstand a Level 5 Hurricane, which would be necessary to prevent the area from flooding again, would cost billions of dollars. It would be better to compensate the residents by buying their land now and having them resettle elsewhere than to continue to subsidize their precarious existence in the Ninth Ward.

My father, who served in the Army Corps of Engineers for 27 years and worked at the Waterways Experiment Station where the Corps attempts to devise plans to control the flooding of the Mississippi, frequently commented that it would be better for society if politicians stopped allowing people to build in flood plains because the costs of disaster relief when the inevitable flooding occurred and the costs of rebuilding was not borne by the people who lived there and that the benefits (a beautiful river view, flat land for farming, relatively cheap land for housing (as in the Ninth Ward), etc.), which were concentrated in the hands of few, did not exceed the costs.

The plan as outlined in the New York Times actually seems cruel because people could squander their funds trying to rebuild only to have the city close the area after a year.  I can guarantee you that the city will spend less compensating them a year from now than they would have to pay now. If they had to buy out the residents today, the residents would have a decent argument that they should be paid the pre-Katrina value of the land now in order to prevent them from trying to rebuild. If the city waits a year and then condemns the land after the residents have either abandoned it or failed to make a go of it, then the city will have to pay only then current value of the land, which would be considerably less then the pre-Katrina value.

These are all valid and valuable points, but I think subsidiarity would caution us against a straightforward cost-benefit analysis in this context, or at least encourage us to build into the cost side of the equation the cultural cost incurred by the Ninth Ward's demise. The Ninth Ward became culturally distinct, at least in part, because of our society's persistent disregard of poor blacks. This disregard may be exacerbated by ignoring the neighborhood's cultural distinctiveness and historical meaning -- we can't just bulldoze the community and scatter its inhabitants to the wind, government checks in hand.  Or at a minimum, we need to consider the loss of meaningful community that accompanies the physical destruction of a place, keeping in mind that lives unfold and relationships are built in neighborhoods that are by no means fungible.

Rob

Wednesday, January 11, 2006

More on Wheaton, Catholics, and Scripture

By Thomas Berg

Notre Dame's John O'Callaghan e-mails in criticism of Wheaton College's dismissal of Joshua Hochschild, and in response to my account of what Wheaton's arguments might be:

On the questions you raise: A) no doubt Wheaton College should be given deference on many of the things it believes.  But I don't think it should be given deference on what it believes Roman Catholics believe.  Many Protestants believe that Catholics worship Mary.  But surely we should not give deference to them on that.  Nor should we give them deference in claiming that we do not believe any of the statements they list in their Statement of Faith.

B) Josh Hochschild was asked whether he could sign the statement put before him, not statements of any number of beliefs held by members of Wheaton that are not expressed in that statement.  I imagine one reason Wheaton does not try to put all of the things its members believe into the Statement of Faith, is that beyond what is explicitly in it, they probably cannot achieve any kind of uniformity on what to include.  If they included more, they might have to fire more than they do.

C) Logically, one can maintain that Holy Scripture is the "supreme and final authority in all that [it] say[s]" without also maintaining that it is the supreme and final authority in all that it does not say, that is, in all that the Word of God says.  Catholics believe that more is said in the Word of God than only Holy Scripture.  But, Wheaton's Statement of Faith does not exclude that, even if many of its members may believe that it ought to be excluded.  Again, if they put that in, I suspect they would have to fire some more faculty.  And in any case, the authority of the Church is not above the Word of God, whatever it says.

Finally, D) on what the WSJ reports Josh as saying, I think he was making an analogy of proportionality, like 2-is-to-3 as 4-is-to-6.  But in such an analogy one is not committed to the claim that 2=4 or 3=6.  One may clam that Protestants may turn to their pastors as authorities the way Catholics turn to the magisterium of the RC church, without anyone claiming that the authority of their pastors is the kind of authority possessed by the magisterium of the RC church.

Tom

"It could cost the church [sic] some money."

By Patrick McKinley Brennan

Bishop Gumbleton has spoken.  Assuming arguendo that what His Excellency reports about what happened to him is true, we all have reason to be grateful that, through grace, he overcame the harm and went on to do so much good.  This is a very serious matter, obviously.  Am I wrong, then, in thinking that "It could cost the church some money" is not something a successor to the apostles should say in the context of advocating an expansion of civil statutes of limitations for abuse claims?  "The church" will pay.  It's not His Excellency's parish that may be closed and then sold to pay the price of the episcopal negligence, etc.  Where will the Masses be celebrated and the confessions heard, Your Excellency?  I don't doubt that the litigation bills are raising episcopal consciousness; I do doubt and even deny that it's good for the Church for a bishop (publicly) to translate the shrinkage of parish life into terms that would satisfy Justice Holmes.             

Wheaton's Divisive (and/or Courageous) Stand

By Rob Vischer

Scot McKnight, author of an article about the evangelical-Catholic conversion phenomenon titled, From Wheaton to Rome, chimes in on the Wheaton College controversy:

Is the Roman Catholic commitment to the authority of the Church tradition inconsistent with [Wheaton's faith] statement? I think not.

Here’s what many of us would also say: what Wheaton is actually doing is not claiming the authority of Scripture over against the dual authority of Scripture and Tradition, but affirming one tradition’s interpretation of Scripture over against another (the RC one). In other words, it is saying “evangelicals are not Roman Catholics.” It wants to define evangelical in such a way that it affirms the five hundred year-old debate that has separated them: evangelicals are not Catholics.

There is no reason here to get into protracted debates that have occupied theologians for five hundred years. Wheaton has the right to do what it did; I doubt myself that it is as clear-cut as the newspaper article’s representation makes it. My understanding is that the Tradition of Roman Catholicism is not an equal authority but the divinely-blessed carrying on of that biblical authority.

And over at First Things, Joseph Bottum brings a different perspective:

The problem, really, is the difficulty in crafting a faith statement that can be signed by every Protestant—from the highest of high-church Anglicans to the lowest of low-church fundamentalists—but can’t be signed by any Catholic. In the end, all such things are likely to run on a wink and prayer, which says a great deal about the incoherence of some Christian disunity. And the whole thing is sadly hard on Professor Hochschild, who has suffered a pay cut to teach at a Catholic school, and only because he has taken a principled stand on questions of faith—which is the exactly the lesson schools like Wheaton hope to teach.

And yet, principled stands are supposed to cost something; otherwise, they’re not stands but merely poses. In the end, Wheaton is, I think, to be applauded for trying to prevent the decline of religious identity . . . .

Getting rid of a serious, principled, and popular medieval philosophy professor is a sad example of the cost of Christian divisions, against which we pray ut unim sint: that they may be one. But until those divisions are healed, the shared Catholic and Protestant struggle to maintain religious identity in a secularized culture will occasionally create such disturbing incidents. If Catholics are concerned—as they ought to be—about the Catholic identity of their own colleges and universities, then they must accept the right and even duty of Protestant schools to maintain a Protestant character.

Rob

UPDATE: Here are two statements by Wheaton College president Duane Litfin (offered in 1998 and 2004) explaining the no-Catholic policy in more detail.

Subsidiarity and Katrina

By Rob Vischer

On Saturday at the annual conference of the Christian Law Professors Fellowship in Washington D.C., I presented a paper exploring subsidiarity's implications for the Katrina recovery effort.  One of the thorniest issues is the apparent need to close down particular areas of New Orleans given the likelihood that the city's post-Katrina population will be drastically reduced and the economic base will not be sufficient to support the city's pre-Katrina physical boundaries.  The Urban Institute had suggested that certain areas be closed to redevelopment given their vulnerability to flooding.  That sort of top-down imposition on an issue so central to the vitality of individuals and their local communities stands in significant tension with subsidiarity's bottom-up approach. 

The Bring Back New Orleans Commission established by Mayor Nagin now seems poised to embrace subsidiarity's rationale (even if subconsciously), proposing that residents be allowed to redevelop any neighborhood, but if a neighborhood lacks a critical mass of residents after one year, the city can close it down.  Residents in vulnerable neighborhoods wil be assuming the risk when they come back, but at least they will have the power and opportunity to reclaim their communities, one house at a time.  Even in the wake of a disaster so immense that collective planning seems to be the only hope of a viable social order, subsidiarity reminds us that prospects for long-term, sustainable redevelopment will rest not only on grand blueprints and generous funding, but also on the creation of opportunities for local empowerment through which the victims of the disaster become the authors of their own recovery.

Rob

Tuesday, January 10, 2006

The Catholic Church and the Bible

By Thomas Berg

Continuing the question Rick and I have discussed over whether a Catholic (like Prof. Hochschild) can subscribe to an evangelical Protestant school's (i.e. Wheaton's) statement of faith re. Scripture:  There's a comment over at Open Book by "Thomas Aquinas" (scroll down 2/3 of the way through the comments) that lays out some statements from Vatican II's Dei Verbum, the Dogmatic Constitution on Divine Revelation.  First, let me quote Wheaton's statement of faith concerning Scripture and then the quoted passages from Dei Verbum.  (Thanks to Notre Dame's John O'Callaghan for the pointer to the commenter.)

1.  From Wheaton's statement of faith:

[T]he Scriptures of the Old and New Testaments are verbally inspired by God and inerrant in the original writing, so that they are fully trustworthy and of supreme and final authority in all they say.

2.  From Dei Verbum:

On the inerrancy of Scripture Dei verbum #11: "Those divinely revealed realities which are contained and presented in Sacred Scripture have been committed to writing under the inspiration of the Holy Spirit. For holy mother Church, relying on the belief of the Apostles (see John 20:31; 2 Tim. 3:16; 2 Peter 1:19-20, 3:15-16), holds that the books of both the Old and New Testaments in their entirety, with all their parts, are sacred and canonical because written under the inspiration of the Holy Spirit, they have God as their author and have been handed on as such to the Church herself.(1) In composing the sacred books, God chose men and while employed by Him (2) they made use of their powers and abilities, so that with Him acting in them and through them, (3) they, as true authors, consigned to writing everything and only those things which He wanted. (4)

Therefore, since everything asserted by the inspired authors or sacred writers must be held to be asserted by the Holy Spirit, it follows that the books of Scripture must be acknowledged as teaching solidly, faithfully and WITHOUT ERROR that truth which God wanted put into sacred writings (5) for the sake of salvation. Therefore "all Scripture is divinely inspired and has its use for teaching the truth and refuting error, for reformation of manners and discipline in right living, so that the man who belongs to God may be efficient and equipped for good work of every kind" (2 Tim. 3:16-17, Greek text)."

On the relation of Sacred Scripture to the Word of God, Dei verbum #10: "Sacred tradition and Sacred Scripture form one sacred deposit of the word of God, committed to the Church."

On the relation of the teaching authority of the Church to the Word of God which is a unity of Sacred Tradtion and Sacred Scripture, again Dei verbum #10: "But the task of authentically interpreting the word of God, whether written or handed on, (8) has been entrusted exclusively to the living teaching office of the Church, (9) whose authority is exercised in the name of Jesus Christ. THIS TEACHING OFFICE IS NOT ABOVE THE WORD OF GOD, BUT SERVES IT, teaching only what has been handed on, listening to it devoutly, guarding it scrupulously and explaining it faithfully in accord with a divine commission and with the help of the Holy Spirit, it draws from this one deposit of faith everything which it presents for belief as divinely revealed."

On the Church claiming to be the final authority in judging INTERPRETATIONS of the Sacred Scripture and the Word of God, Dei verbum #12: "For all of what has been said about the way of interpreting Scripture is subject finally to the judgment of the Church, which carries out the divine commission and ministry of guarding and interpreting the word of God."

The commenter "Thomas Aquinas" concludes that the Church

claims the authority to judge INTERPRETATIONS of Sacred Scripture and the Word of God. In conjunction with the former, I don't see that any claim is made that the authority of the Church is in fact a higher authority than the Word of God itself, which Word of God is constitued by a unity of Sacred Tradition and Sacred Scripture.

Based on these passages, "Thomas Aquinas" is "not convinced that a Roman Catholic faithful to the teaching authority of the Church cannot affirm the statement."

My comments:  This is very helpful, although it may not answer everything.  (At the outset, it certainly doesn't show that Catholics consult the hierachy "only as Protestants consult their ministers"; but we must remember that's the WSJ's paraphrase, not Prof. Hochschild's words.)  A clear question is the assertion of the Word of God as a "unity of Sacred Tradition and Sacred Scripture."  Certainly evangelical Protestants have some problems with the claims (logically implicit, I think) that "Sacred Tradition" has equal status with Scripture and that the two never conflict.  Protestants have problems both with the methodological propositions and with some of the substantive results to which they have led (such as, we Protestants would say, Purgatory).  Can someone who affirms Sacred Tradition as a "unity" with Scripture fully affirm Wheaton's statement that Scriptures are "of supreme and final authority in all they say"?  I think that it is possible to do so, depending on the interpretation that one gives to the Wheaton and Catholic statements.  But Wheaton should get some deference (not only in questions of law, but in questions of theological judgment) as to whether someone who affirms an equal status for tradition can treat Scriptures as "supreme and final authority in all they say."

This is not to say that Wheaton's interpretation is right -- let alone that it should be decisive even in the face of the many intellectual and Christian theological virtues that someone like Prof. Hochschild seems to bring.  But there do remain unresolved Catholic-Protestant theological issues:  to paraphrase the title of Mark Noll's latest book, the Reformation may be mostly over, but it's not entirely so.

Tom

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