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.

Friday, April 21, 2006

Condoms and the Culture of Life

This is not a new topic to MoJ readers, but Commonweal explores the cost of the Church's ban on condom use in the battle against HIV in Africa:

This is the reality: a married woman living in Southern Africa is at higher risk of becoming infected with HIV than an unmarried woman. Extolling abstinence and fidelity, as the Catholic Church does, will not protect her; in all likelihood she is already monogamous. It is her husband who is likely to have HIV. Yet refusing a husband’s sexual overtures risks ostracism, violence, and destitution for herself and her children. Given these realities, isn’t opposing the use of condoms tantamount to condemning countless women to death?

Rob

Thursday, April 20, 2006

More on Authority, Reason and History

I’m back from a few days of vacation, and printed out the “authority and reason” thread for my subway ride home—it was so engrossing I almost missed my stop!  Here’s my two cents, colored largely by having just taught the sections of our Catholic Social Thought & the Law Seminar which focus on Evangelium vitae and war and peace. 

I wonder if we might identify a distinction between two large areas for discussion of the role of authority.  As Mark points out, there are enormous complexities that arise when one attempts to apply church teaching to concrete situations (or to the “real world,” as he says).  I wonder if there might be distinct questions that arise when we focus on the Church’s effort to respond and teach in the context of the shifting sands of history.  Perhaps the seismic shifts in teaching on a host of issues—eg, teaching about democracy, or particular questions such as whether Catholics could hold conscientious objector status to armed conflicts which would meet “just war” criteria—can also be understood as an effort to understand what does Church teaching mean for a given period of history.  It is only by putting the The Syllabus of Errors and Dignitatis Humanae into historical context that we understand what is authoritative in both. 

Perhaps this is a subset of Mark’s category, but I think it does provide and an important layer of complexity to discussions about continuity and change.  In response to Rob’s question, I think this might also cut against finding that the Catholic scholar’s proper course is to keep silent—because if we look at several issues as they unfolded over the course of the twentieth century, history seems to have shown that at least some of the dissenters were illuminating important dimensions for what eventually became official teaching.       

At certain points the CST documents contain clear cut statements of authority (eg, Evangelium vitae’s clarity on the moral evil of abortion is a case in point).  But it also seems that just as much effort is poured into understanding with depth the cultural context for a given social problem (see eg., EV 18, discussing circumstances that can mitigate “even to a notable degree subjective responsibility and the consequent culpability of those who make these choices which in themselves are evil").  I realize this is a different question than the one that Eduardo posed—but I wonder, how much of our work as legal theorists—especially when we are trying to work out practical and concrete proposals for policy—is precisely at this intersection, and caught up in the same dynamic? 

Thanks to all of you for a wonderful discussion!  Amy

Institutional Church and the Left/Right Divide

I want to pose two questions that have been bubbling up in my mind this spring.  As the Oklahoma legislature debates abortion and immigration issues and as the state of Oklahoma continues to practice the death penalty, it seems to me that the Catholic Church is the only religious institution consistently bridging the left/right divide, advocating against harsh immigration measures, for greater fetal protection, and against the death penalty.

1.  Is my perception correct?  Is the Catholic Church the only (or at least the only large) religious institution that consistently takes positions on both sides of America's ideological divide.  If not, what are the other ones?

2.  If my perception is correct, why is this?

In a sense, these questions are a continuation of my thinking on authority and reason, and the minor point I made in response to Eduardo's post.

Subsidiarity and Religious Establishments

This paper, by Kyle Duncan, "Subsidiarity and Religious Establishments in the U.S. Constitution," looks interesting.  Here is the SSRN abstract:

This article proposes subsidiarity as a tool for understanding the problem of religious establishments and the function of the Establishment Clause of the U.S. Constitution. Subsidiarity is a theory with roots deep in European political thought. It concerns how persons become genuinely free by associating with others, and what those associations imply about state authority. Subsidiarity’s goal is to empower assocations by conditioning the intervention of state authority. State authority should foster, protect, and coordinate associations, but never absorb their functions. In this way, associations will provide genuine freedom and development for the individuals within them. As a political theory, subsidiarity has been applied to a wide array of problems—from international human rights and the International Criminal Court, to corporate governance and the European Union. Subsidiarity promises interesting applications to establishments and the Establishment Clause. The article concludes that, as a substantive norm, subsidiarity provides a viewpoint from which to assess the role of religious associations within a pluralistic society. It also furnishes an illuminating way of understanding the problem of religious establishments as such. As a structural norm, subsidiarity helps place the Establishment Clause within the federal framework of the U.S. Constitution. It invites us to view the Clause as a structural strategy for dealing with the problem of religious establishments faced by the authors and ratifiers of the U.S. Constitution. The conclusions promise a helpful reorientation of the typical discourse about religious establishments in U.S. jurisprudence and scholarship.

As I have tried to explain elsewhere, I am a big fan of subsidiarity as a political norm and structural principle, and am also inclined to regard as important mediating associations and their freedoms.  That said, I wonder if there are limits to subsidiarity's usefulness when it comes to "[]orienting [our] discourse" about our Constitution?  Subsidiarity, as I understand it, is a principle according to which decisionmaking ought to take place at the "lowest" possible level.  But, subsidiarity is not a general requirement of decentralization or devolution; sometimes, when centralization works best (all things considered), then centralization is required.  Under our Constitution, it seems to me, the local v. national decision is often (not always, of course) a function not so much of "which level works best?", or "which level of decisionmaking best facilitates human flourishing?", but "is the government actor in question authorized to make the decision, or engage in the conduct, at issue?"  If I'm right about this, then what room is there, really, for "subsidiarity" in deciding Religion Clause cases?  (Read the article, Rick.  ed.) 

Killing Innocents

A few days ago, the Washington Post ran this review, by Jonathan Yardley, of A.C. Grayling's "Among the Dead Cities:  The History and Moral Legacy of the WWII Bombings of Civilians in Germany and Japan."  The review opens with this:

In the summer of 1943, the Bomber Command of Britain's Royal Air Force began what it chose to call Operation Gomorrah, "five major and several minor" aerial attacks on the German city of Hamburg, "with the aim of wiping Hamburg from the map of Europe." Most of the bombs it dropped were incendiaries, "small bombs filled with highly flammable chemicals, among them magnesium, phosphorus and petroleum jelly." The result was "the first ever firestorm created by bombing, and it caused terrible destruction and loss of life," almost entirely among civilians. At least 45,000 human corpses were found in the ruins, and more than 30,000 buildings were destroyed. A.C. Grayling writes:

"In the cellars, otherwise unscathed people suffocated to death. Police reports and eyewitness accounts later confirmed many of the horror stories told 'of demented Hamburgers carrying bodies of deceased relatives in their suitcases -- a man with the corpse of his wife and daughter, a woman with the mummified body of her daughter, or other women with the heads of their dead children.' "

At about this time, Winston Churchill watched "a film showing RAF bombers in action over the Ruhr." According to one who was present, Churchill suddenly blurted out: "Are we animals? Are we taking this too far?" Quite to the contrary was the view of Bomber Command, in particular its commander, Air Marshall Sir Arthur Harris, who "wanted to make a tremendous show" (the words are his own) in Hamburg and got what he wanted. But the question remains: Was the indiscriminate bombing of civilians -- in Hamburg, in Dresden, in Tokyo, in Hiroshima, in Nagasaki -- justifiable militarily, or was it "in whole or in part morally wrong"?

According to Yardley,

[Grayling] insists, correctly, that "acts of injustice can be perpetrated in the course of a just war, and if the injustices committed are themselves very great, their commission can threaten the overall justice of the war in which they took place." St. Thomas Aquinas argued that "on three conditions, war can be justified." These are "first, that there is a just cause of war, second, that it is begun on proper authority, and third, that it is waged with the right intention, meaning that it aims at 'the advancement of good, or the avoidance of evil.' " Obviously World War II satisfied all of these conditions. But what about two others formulated by modern just-war theorists: "that to be just a war must have a reasonable chance of success, and that the means used to conduct it must be proportional to the ends sought."

It is on this final condition that bombing of civilians comes a cropper. Leave aside all the other objections to such bombing, moral and otherwise -- and there are plenty of them -- the simple fact is that it is disproportionately cruel, destructive and wanton. The ends sought -- defeat of Germany and Japan -- were in sight before the bombings of 1944 and 1945, and even the bombing of Hamburg in 1943 was out of proportion to the gains it allegedly brought to the Allied cause, if in fact there were any. The "horrific firestorm" it produced may have been small compared to the atrocities of Auschwitz, but it was horrific all the same. Grayling is right to insist that by acknowledging that we do not "have clean hands ourselves," we would be in a far stronger position to condemn "the people who plunged the world into war and carried out gross crimes under its cover." As matters stand now, we are at the very least open to the charge of hypocrisy.

I could be wrong, but I would not have thought that St. Thomas's view was that "acts of injustice can be perpetrated in the course of a just war[.]"  Rather, I would have thought that his view was that some acts -- acts that are not intrinsically immoral -- which might ordinarily, all things considered, be unjustifiable are justifiable (i.e, are not "acts of injustice") in the context of a just war.  Am I wrong?

Cardinal Mahoney and the documents

The Supreme Court declined to review a decision by a California court requiring Cardinal Mahoney to produce documents relating to certain priests accused of sexual abuse.  Cardinal Mahoney had argued, among other things, that requiring the production of these documents would be an unjustifiable incursion into the priestly-formation process.  So, here is a question, one that might be particularly interesting given the Cardinal's recent (and widely noted) statements relating to Catholics' moral obligations toward vulnerable immigrants, notwithstanding immigration laws:  If Cardinal Mahoney believes the arguments he was making about these documents, then should he refuse to turn them over, and face contempt sanctions?  (To be clear:  I am saying nothing about the merits of Cardinal Mahoney's religious or constitutional claims, or about whether he should defy discovery orders.  I'm only asking, *if* he believes that an order requiring discovery would violate the freedom of religion and interfere with priestly formation, *then* should he comply?)

Great Question

Great question, Patrick -- tell us more. Some of us amateur theologians tend to make it up as we go along, forgetting that very few of the questions we ask have not been considered in one form or another in the last 2006 years.

-- Mark

Wednesday, April 19, 2006

Authority, etc.

I've only just begun to study the fascinating postings on authority, etc., but one question occurs to me right away.  Don't the Church's own careful distinctions as to the kind of adherence she asks of the faithful matter to analysis?  An alternative taxonomy, helpful in itself, has been developed in the conversation here, but I'm not clear on how it tracks or declines to track what the Church herself has taught on these precise questions.  The Church's distinctions may prove to be inadequate to our purposes here, but in a tradition that knows how to "define and declare," pronouncements of other kinds should be treated as what they claim to be.  Perhaps there are straw men in operation here and there?  For example, the Church claims the authority to teach unerringly what is contained in the deposit of faith.  But does she claim to teach with equal certainty what is not explicit in the deposit of faith but is known (only) thanks to the natural law?         

Good news, bad news re: bloggership

So, the good news:  This conference, "Bloggership:  How Blogs are Transforming Legal Scholarship," looks very interesting and entertaining.  Bad news:  Mirror of Justice blogistas are nowhere in sight on the line-up.  Very disappointing.  MOJ is, among law blogs, distinct.  With all due respect to the organizers, a "bloggership" conference that does not take account of our enterprise is, well, lacking.

Cavadini on Notre Dame, Ex Corde, and Gnosticism

Professor John Cavadini, the chair of Notre Dame's Department of Theology, has published an "open letter" in response to Fr. John Jenkins's "Closing Statement on Academic Freedom and Catholic Character" (here).  I am posting this not so much to re-start our conversation about the appropriateness at Catholic universities of performances of the "Vagina Monologues," but because Professor Cavadini has some very interesting things to say about the nature of a Catholic university, and the relationship between such a university and the Church (as opposed to a disembodied "Catholic intellectual tradition").  It strikes me that his thoughts are relevant to the wonderful discussion we've been having, the last few days, about authority and the vocation of a Catholic scholar.

Here is a bit from Professor Cavadini's letter:

. . . Ex Corde Ecclesiae . . . speaks of a relationship not in the first place between the Catholic university and the Catholic intellectual tradition, but between the Catholic university and the Church. And, whether we recognize it or not, this relationship to the Church - to the real, incarnate Body of Christ, the Church as it is with all its blemishes and not the abstract, idealized Church in our minds - is the lifeblood and only guarantee of our identity as a Catholic university. There is no Catholic identity apart from affiliation with the Church. Appeal to "the Catholic intellectual tradition" apart from some explicit relationship to the Church risks reducing the tradition itself to an abstraction. And again, I do not mean an imaginary Church we sometimes might wish existed, but the concrete, visible communion of "hierarchic and charismatic gifts," "at once holy and always in need of purification," in which "each bishop represents his own church and all of [the bishops] together with the Pope represent the whole Church …" (Lumen Gentium 1.4,8; 3.23).

Now, no one would deny that the relationship between University and Church is not a challenging relationship with many attendant difficulties. And there is certainly room for argument about what are the specific, appropriate forms and shapes that the University's relationship with the Church should take. But this relationship, which necessarily involves some measure of accountability, should never be dismissed as an irrelevance[.] . . .

The ancient Gnostic heresy developed an elitist intellectual tradition which eschewed connection to the "fleshly" church of the bishop and devalued or spiritualized the sacraments. Are we in danger of developing a gnosticized version of the "Catholic intellectual tradition," one which floats free of any norming connection and so free of any concrete claim to Catholic identity? Are we - meaning all of us, and not just the President, for this is not just his problem - disowning the problem, rather than facing it honestly as a problem, as a project, as a challenge, as a struggle and yes, as a commitment? There is no commitment if it is not explicitly stated. . . .