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, March 23, 2006

"A New Constitutional Order?"

The Fordham Law School is hosting, on March 24-25, what looks to be a remarkable Centennial Conference, entitled "A New Constitutional Order?"  (More info here).  The conference features nine different panels of speakers, on subjects like:  "The Rehnquist Court and Beyond:  Revolution, Counter-Revolution, or Mere Chastening of Constitutional Ambitions?", "Constitutions in Exile:  Is the Constitution a Charter of Negative Liberties or a Charter of Positive Benefits?"; and "Subnational Norms in the New Constitutional Order." 

One of the participants, I am happy to note, is our own Eduardo Penalver.

More on Murdering for God

Lest we feel squeamish about condemning the Afghan religious impulse to murder a Christian convert, out of either excessive deference to a strongly-felt religious compulsion or weak-kneed reluctance to impose "Western" values, we should note the following argument by Slavoj Zizek, the well-known (but hard to classify) Slovenian philosopher, who succeeds in making atheism look good by comparison:

FOR centuries, we have been told that without religion we are no more than egotistic animals fighting for our share, our only morality that of a pack of wolves; only religion, it is said, can elevate us to a higher spiritual level. Today, when religion is emerging as the wellspring of murderous violence around the world, assurances that Christian or Muslim or Hindu fundamentalists are only abusing and perverting the noble spiritual messages of their creeds ring increasingly hollow. What about restoring the dignity of atheism, one of Europe's greatest legacies and perhaps our only chance for peace?

1. More than a century ago, in "The Brothers Karamazov" and other works, Dostoyevsky warned against the dangers of godless moral nihilism, arguing in essence that if God doesn't exist, then everything is permitted. The French philosopher André Glucksmann even applied Dostoyevsky's critique of godless nihilism to 9/11, as the title of his book, "Dostoyevsky in Manhattan," suggests.

This argument couldn't have been more wrong: the lesson of today's terrorism is that if God exists, then everything, including blowing up thousands of innocent bystanders, is permitted - at least to those who claim to act directly on behalf of God, since, clearly, a direct link to God justifies the violation of any merely human constraints and considerations. In short, fundamentalists have become no different than the "godless" Stalinist Communists, to whom everything was permitted since they perceived themselves as direct instruments of their divinity, the Historical Necessity of Progress Toward Communism.

During the Seventh Crusade, led by St. Louis, Yves le Breton reported how he once encountered an old woman who wandered down the street with a dish full of fire in her right hand and a bowl full of water in her left hand. Asked why she carried the two bowls, she answered that with the fire she would burn up Paradise until nothing remained of it, and with the water she would put out the fires of Hell until nothing remained of them: "Because I want no one to do good in order to receive the reward of Paradise, or from fear of Hell; but solely out of love for God." Today, this properly Christian ethical stance survives mostly in atheism. ENDQUOTE

I AM by no means sure that this "properly Christian ethical stance exists only in atheism;" in fact, I know it doesn't. But for the rest of Zizek's argument see the NYT 3.12.06. Thanks to my colleague Ellen Wertheimer for the pointer.

--Mark

Wednesday, March 22, 2006

status of the early human embryo

The question raised by Cathleen Kaveny is an interesting one. She suggests that the pre-implantation embryo is not a human being because of the possibility of twinning. I think it worth mentioning that we are talking about a relatively rare phenomenon and that embryologists agree that fertilization normally represents the beginning of life for an individual. Does the possibility of twinning mean that the pre-implantation embryo ought not to be treated as a human being. It seems clear that the embryo at this stage is as Robby George has stated, "a unitary, self-integrating, actively developing human organism." That it is not certain to be an individual huuman person because it might split into 2 individuals does not mean that the early embryo "is a mere clump of cells." As Patrick Lee has stated: "a distinct, living human individual comes to be with the fertilization of the ovum by the sperm; another distinct, living human individual may be generated from the cells of a single living human individual either by twinning or by cloning." A developing human organism ought to be treated as a person. Bill May's treatment of this issue is at pages 166-170 of his Catholic Bioethics and the Gift of Human Life. One of Patrick Lee's statements on this issue is here. Robby George's statement on cloning addressing this issue (his statement to the President's Council on Bioethics) is here. A statement on this issue by Dr. John Hubert is here

Richard M. 

This could be interesting . . .

Here is a twist, perhaps, on the civil-disobedience issue raised by Cardinal Mahoney's statements on immigration.  Consider this from the San Francisco Chronicle:

San Francisco elected officials, who have tangled with the Catholic Church before, issued a blistering statement Tuesday that calls on the Vatican to overturn its edict [RG:  Does anyone else issue "edicts" anymore, besides "the Vatican"?  Just wondering . . . ] that children waiting to be adopted should not be placed with gays and lesbians.

The Board of Supervisors unanimously passed a nonbinding resolution that takes aim at a statement issued two weeks ago by Cardinal-elect William Levada, the former archbishop for San Francisco who now serves as second-in-command at the Vatican. Levada said Catholic agencies "should not place children for adoption in homosexual households.''

The San Francisco Board of Supervisors wasted little time chiming in, and challenged local church officials to defy the Vatican.

"It is an insult to all San Franciscans when a foreign country, like the Vatican, meddles with and attempts to negatively influence this great city's existing and established customs and traditions, such as the right of same-sex couples to adopt and care for children in need,'' the resolution stated.

Now, I think the Board of Supervisors is and ought to be entitled to voice its views -- which reflect, I am confident, those of many of the Supervisors' constituents -- on this difficult issue in this way.  That said, I wonder if someone committed to the Supreme Court's so-called "endorsement test" ought to disagree with me.

UPDATE: Here is a more measured and thoughtful critique of the bishops' approach to the gay-adoption question, from the editors of Commonweal.  The editors note:

But if the bishops have swallowed a camel and strained out a gnat, leaders of the Massachusetts legislature have done little better. Like the right to speech, press, and assembly, the exercise of religion is given special protection by the Constitution. Whether it is conscientious objection to military service or exempting Communion wine from Prohibition laws, the inviolability of religious belief lies at the heart of the Constitution’s understanding of the limits of government coercion. The state must demonstrate a high and compelling interest before it can circumscribe the free exercise of religion. In many contexts, antidiscrimination law constitutes such an interest, especially where a religious institution is taking public money. [RG:  I'm not sure.  The "secular" good that a religious institution can do with "public money" would seem, at least sometimes, to justify exemptions from non-discrimination norms].  But that is not the case here.

Buckley v. Mahoney, cont'd

Thanks to Rob and Michael for passing on Grant Gallicho's post about William Buckley and Cardinal Mahoney.  My own views -- like, I gather, Michael's, Grant's, and Rob's -- are closer to those expressed in Cardinal Mahoney's op-ed than to those expressed by Buckley here.  (Which is not necessarily to endorse -- on the merits -- the positions on immigration-reform and immigration-related matters that are often proposed by the USCCB, etc.)

That said, and not to be snarky, it really is a bit much -- isn't it? -- to read the condescendingly approving kudos being handed out to Cardinal Mahoney by the same editorial-writers (see, e.g., March 3's "The Gospel v. HR 4437" in the New York Times) who find dangerous, Catholic-inspired breaches in the wall of separation under every bed and who are driven to frothing rage every time a Christian leader suggests that Christians really ought to, say, try to change our abortion laws, or end the government's dysfunctional monopoly in education, or refuse to comply with a state's contraception-coverage mandate.

Buckley v. Mahony

[This is from dot.Commonweal:]

William F. Buckley vs. Cardinal Mahony

March 21, 2006, 11:43 pm

Look at the Right go. Yet another salvo from the National Review shot across the bow of the U.S. Conference of Catholic Bishops. Buckley's conclusion is worth quoting in toto:

President Bush endorsed the House bill and asks the Senate to act on it. He hardly understands himself to be rejecting the canon of Christian behavior towards our fellow men by making the point that free and independent societies have the right to prescribe immigration codes, and need especially to reject such distortions of Christian dogma and practice as invite the wrong kind of attention to appropriate divisions between church and state.


It strikes me as a stretch to suggest that Cardinal Mahony's call for civil disobedience, should the bits of HR 4437 he finds objectionable be signed into law, is meant as an attack on the right of "free and independent societies...to prescribe immigration code." Likewise, no bishops have intimated that President Bush "understands himself to be rejecting the canon of Christian behavior towards our fellow men." The whole canon? Bit much. The concern, I think, is just the part about the works of mercy.

But I should let the cardinal speak for himself.

by Grant Gallicho
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"Today's Gravest Injustice"

Pope Benedict XVI Calls Abortion "Today's Gravest Injustice"

By John-Henry Westen

VATICAN, March 20, 2006 (LifeSiteNews.com) - In a meeting today with representatives of the Vatican to international organizations, Pope Benedict XVI stressed that respect for the truth is the bases of justice. 
"Relations between States and within States are just in so far as they respect the truth," he said. "When, however, the truth is offended, peace is threatened and rule of law is compromised, then, as a logical consequence, injustices arise."

"These injustices can adopt many faces," said Benedict XVI. "For example, the face of disinterest or disorder, which can even go so far as to damage the structure of that founding cell of society that is the family; or perhaps the face of arrogance that can lead to abuse, silencing those without a voice or without the strength to make themselves heard, as happens in the case of today's gravest injustice, that which suppresses nascent human life."

The Pope concluded by telling the Holy See representatives that through "difficulties and misunderstandings" they "participate authoritatively in the prophetic responsibility of the Church, which intends to continue to raise her voice in defense of mankind, even when policies of States and the majority of public opinion moves in the opposite direction. Truth, indeed, draws strength from itself and not from the amount of consent it arouses."

(More here).

Buckley on Mahony

William F. Buckley responds to Cardinal Mahony's call to disobey the proposed immigration law:

Now the good cardinal, whose motives we must as a matter of Christian forbearance accept as humanitarian, has got to be sharply rebuked by the Conference of Bishops. Begin with the basic question: The writing of the law is a democratic exercise. To call for disobedience to the law is acceptable behavior when such law transgresses upon the city of God. The laws that called for the annihilation of the Jewish race violated the city of God. Proposed laws that would punish citizens who deliberately help to defeat or to circumvent immigration laws aren't inherently defiant of the prerogatives of a democratic community. Cardinal Mahony's contumacy has to be rejected for what it is, never mind what the Senate ends up doing in the matter of formulating fresh rules to enforce policies that have not been enforced.

President Bush endorsed the House bill and asks the Senate to act on it. He hardly understands himself to be rejecting the canon of Christian behavior toward our fellow men by making the point that free and independent societies have the right to prescribe immigration codes, and need especially to reject such distortions of Christian dogma and practice as invite the wrong kind of attention to appropriate divisions between church and state.

Rob

When Does An Individual Human Being Begin?

Commonweal
March 24, 2006

When Does Life Begin?

TWO PROLIFE PHILOSOPHERS DISAGREE

Cathleen Kaveny

[Cathleen Kaveny teaches law and theology at the University of Notre Dame.]

My esteemed Notre Dame colleague, John Finnis, will receive the third annual Paul Ramsey Award for Excellence in Bioethics from the Center for Bioethics and Culture (CBC), a conservative Christian think tank. Paul Ramsey (1913-88) was a pioneer in the field of bioethics. He was also one of my teachers at Princeton. I wonder whether the CBC would consider Ramsey himself suitable for the award it issues in his name? Firmly prolife, Ramsey still considered some questions-such as the status of the early human embryo-to be legitimately debatable by committed Christians. I’m not sure the CBC feels the same way. The chair of its nominating committee, C. Ben Mitchel, has said that denying that the early embryo is a human being is analogous to denying the humanity of Jews and slaves. Would Paul Ramsey agree?

I don’t think so. In fact, Ramsey had serious reservations about the position that individual human life starts at fertilization-an opinion Finnis shares with the worthy previous recipients of the Ramsey Award, Germain Grisez and Edmund Pellegrino-both Catholics. In Ramsey’s classic and wide-ranging essay “Abortion: A Review Article” (The Thomist, 1973), he engages in vigorous, detailed, and still-relevant debate with Grisez’s Abortion: The Myths, the Realities, the Arguments (1970).

In that book, Grisez argues that individual human life begins when egg and sperm unite, creating a fertilized ovum (a zygote) with a full complement of forty-six chromosomes. That zygote then undergoes cell division, becoming an embryo. But there is a wrinkle to the argument: for about two weeks after fertilization, that embryo may split, resulting in identical twins. Less commonly, two embryos may combine, resulting in one individual. As Ramsey notes, “there is fluidity and indeterminacy in either direction during the earliest days following conception.” So how do we think about the various entities involved in twinning and combination?

In the case of twinning, Grisez argues, we must think in terms of three distinct human individuals. The original embryo-let’s call it A-is a human individual distinct from its parents. The twins-let’s call them B and C-are human individuals distinct from each other and from the fertilized egg from which they sprang. What is the relationship among A, B, and C? Grisez explains that “we should think of the twins as the grandchildren of their putative parents, the individual that divided being the true offspring, and the identical twins of that offspring by atypical reproduction.” In other words, A is the child of the parents, and B and C are the grandchildren. This is odd, since A neither died nor gave birth. Rather, A split through a form of asexual reproduction. Grisez likens the split to the way in which “two individual animals of many lower forms of life can develop by the division of a single, existing individual.” In his article, Ramsey conjectures, with a note of incredulity, that Grisez must be talking about halved earthworms.

What about two embryos combining to form one? Grisez says this involves two individuals, A and B, combining to form C, who is a distinct new individual. He suggests this scenario is analogous to that of “a grafted plant.” Ramsey’s response: “With considerable astonishment we may ask whether any such ‘individuality’ is the life we should respect and protect from conception. In trying to prove too much, Grisez has proved too little of ethical import.”

Analogies to earthworms and plants seemed implausible to Ramsey. So did Grisez’s invitation to think of identical twins as the grandchildren of the woman who gave birth to them. Grisez’s attempt to preserve the claim that individuated human life begins at fertilization sacrifices too much of what we know about human nature-both from a Christian perspective and a scientific one. After all, human beings reproduce sexually, not asexually. Humans are mortal; they die and their bodies disintegrate. They don’t split neatly into two with no loss, cost, or remainder (as in twinning), nor do they merge fluidly into one another (as in combination).

Ramsey thought it plausible that an individuated human life does not begin until the possibility for twinning and combination has passed, a stage called restriction, about two weeks after fertilization. Assuming Ramsey was right, what does that mean for research on human embryos that destroys them in the process? If the embryos have not reached the stage of restriction, such research would not count as homicide, because it wouldn’t involve killing a human being.

If it’s not homicide, is such research morally permissible? Perhaps, given its potential benefits. But not necessarily. Ramsey was deeply suspicious of the scientific imperative to manipulate human destiny in the name of progress. He was keenly aware of the slippery slope such research puts us on. Should the research prove effective, the inevitable temptation will be to use more developed embryos and even fetuses in our research to get better results. On his view, that would be homicide.

Paul Ramsey’s powerful and fearless intellect led him to differ not only from secular liberals, but also from religious conservatives. If the CBC issues an award in his name, its leaders ought to refrain from demonizing as Nazis or slaveholders those who hold positions that Ramsey himself considered defensible.
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Immigration and Natural Law

Cardinal Mahony responds to criticism of his earlier statement that he would encourage his priests to disobey a proposed immigration law:

Current law does not require social service agencies to obtain evidence of legal status before rendering aid, nor should it. Denying aid to a fellow human being violates a law with a higher authority than Congress — the law of God.

Rob