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, August 1, 2006

Using Religion for Partisan Political Purposes

Several posts on the Mirror of Justice in recent months appropriately have questioned the overzealous tendency of some to make religious faith subservient to partisan politics, to which I recently replied with some thoughts from our three most recent popes about the primary salvific mission of the Church and the vital independence of the Church’s religious witness.

The recent series of posts almost invariably have suggested that those on the right are peculiarly guilty of this abuse, too-readily connecting Christian faith to Republican Party politics. The following remarks by a prominent figure on the political and religious left demonstrates that those on the other side of the divide are at least as facile in the ability to caricature political adversaries and to hijack a religious venue for partisan political purposes.

The following interview remarks by a former president have been widely distributed and the subject of considerable attention elsewhere in the blogosphere. The excerpt I post below is accompanied by pithy commentary from Rev. Richard John Neuhaus in the “Public Square” section of the most recent issue (Aug.-Sept. 2006) of First Things:

Former president Jimmy Carter has written another book on American values. He is deeply saddened by the way the “religious right” uses religion for partisan political purposes. In an interview with an Atlanta magazine, he explains his concern: “Carter fittingly used a parable to illustrate how he’d like to see the political/religious debate unfold. ‘I was teaching a Sunday school class two weeks ago,’ he recalls. ‘A girl, she was about 16 years old from Panama City [Fla.], asked me about the differences between Democrats and Republicans. ‘I asked her, “Are you for peace, or do you want more war?” Then I asked her, “Do you favor government helping the rich, or should it seek to help the poorest members of society? Do you want to preserve the environment, or do you want to destroy it? Do you believe this nation should engage in torture, or should we condemn it? Do you think each child today should start life responsible for $28,000 in [federal government] debt, or do you think we should be fiscally responsible?” ‘I told her that if she answered all of those questions, that she believed in peace, aiding the poor and weak, saving the environment, opposing torture . . . then I told her, ‘You should be a Democrat.’” Jimmy Carter is deeply saddened by the way religion is used for partisan political purposes.

Greg Sisk

CST and Estate Taxes

[This is from dot.Commonweal:]

Estate Tax Debate

August 1, 2006, 12:49 am

Several of the participants of the Mirror of Justice blog have been having a running debate over the last several days about Catholic Social Teaching (CST) and the proposed repeal of the Estate Tax. I can't possibly link to all the individual posts, so you'll just have to click over and scroll from the bottom.

Now I have to confess that prior to reading these posts, I could not have imagined someone making the case for repealing the Estate Tax on the basis of CST.

But now, I am happy to say, I can imagine it.  I just don't find it convincing!

Speaking of taxes ... and tax cheats

Is there a justification in CST for this?

New York Times

August 1, 2006

Tax Cheats Called Out of Control
By DAVID CAY JOHNSTON

So many superrich Americans evade taxes using offshore accounts that law enforcement cannot control the growing misconduct, according to a Senate report that provides the most detailed look ever at high-level tax schemes.

Among the billionaires cited in the report are the owner of the New York Jets football team, Robert Wood Johnson IV; the producer of the “Mighty Morphin Power Rangers” children’s show, Haim Saban; and two Texas businessmen, Charles and Sam Wyly, who the Center for Public Integrity found in 2000 were the ninth-largest contributors to President Bush.

Mr. Johnson and Mr. Saban, who are portrayed as victims in the report, are scheduled to testify today before the Senate Permanent Investigations subcommittee. They are expected to say that professional advisers assured them their deals to avoid taxes were more likely lawful than not. The Wyly brothers told the committee that they would invoke their Fifth Amendment right against self-incrimination and thus were not called to testify. The report characterizes them as active participants in tax schemes.

Cheating now equals about 7 cents out of each dollar paid by honest taxpayers, as much as $70 billion a year, the report estimated.

“The universe of offshore tax cheating has become so large that no one, not even the United States government, could go after all of it,” said Senator Carl Levin, the Michigan Democrat whose staff ran the investigation.

Senator Norm Coleman, the Minnesota Republican who is chairman of the subcommittee, adopted the minority report on Sunday as the product of the full committee.

The report details how the Quellos Group, a tax shelter boutique based in Seattle, “concocted a tax shelter” using $9.6 billion “worth of fake securities transactions that were used to generate billions of dollars of fake capital losses.”

Senator Levin said that when investigators asked for trading records they were first told the trades were private, over-the-counter transactions. He said investigators asked for trading tickets or other evidence of who owned the $9.6 billion worth of stock and were told the stocks were never owned by the parties involved.

“They just wrote down numbers on paper and claimed losses,” he said. “It was just like fantasy baseball, except the taxes not paid were for real.”

Quellos, in a statement, said, “we fundamentally disagree with the report, which presents a one-sided view.” It said the transactions, which the Senate committee describes as fabrications, were real and involved “a significant possibility of economic gain and loss.”

The investigation, which took 18 months, involved 74 subpoenas, 80 interviews and the collection of more than two million documents, and yet Senator Levin said “the six cases we present are just examples, just a pinhole look.”

The 400-page report recommends eight changes, some of them aimed at going after the law and accounting firms, banks and investment advisers that the report says enable tax schemes that rely on complexity, secrecy and compartmentalizing information so that advisers can claim they had no idea that the overall transaction was a fraud.

[To read the whole article, click here.]
_______________
mp

Martha Fineman's Response to Rob Vischer

I shared with Martha Fineman--who is my colleague here at Emory--Rob's post on "family diversity".  Here is Martha's responsse:

A good place to start for my work is with my newest book – The Autonomy Myth: A Theory of Dependency (New Press 2004).  Judith Stacy and others have written extensively on the lack of social science information supporting the superiority of the nuclear family when it comes to raising children (having adequate money seems to be a big part of the equation for success, as distinct from having formally married or being heterosexual parents).  Our Emory colleague, Anita Bernstein, has edited a collection (NYU Press) that takes on the marriage issue from diverse perspectives – Marriage Proposals: Questioning a Legal Status.  There is also have a collection I edited, published by Cornell University Press, titled Feminism Confronts Homo Economicus, which has a section on family and welfare policies and generally takes on the kind of “rational” economic approach implicit in Professor Vischer's comments.
_______________
mp

Lee on John Paul II and Benedict XVI

Ave Maria law prof Kevin Lee offers the following reflections in response to Lisa's question and Tom's comments on Pope John Paul II, Pope Benedict XVI, and Augustinianism:

I thought I would weigh in on this discussion of the continuity of Pope Benedict XVI’s thought with John Paul the Great. (I am looking forward to the conference on this topic at Villanova this fall!) Both Lisa and Tom raised some excellent questions and brought up some interesting points. I spent a bit of time this summer with both Fides et Ratio and the City of God as I try to wrap up my dissertation, so the questions hit me with a bit of force.

First, I want to recommend the final section of Fides et Ratio, which explains why Mary represents the ideal of wisdom. John Paul teaches, “As Mary, consenting to the message of Gabriel, lost nothing of her humanity and freedom, so too the discipline of philosophy in accepting the superabundant truth of the Gospel loses nothing of its autonomy, but discovers that all its researches are propelled towards the highest perfection.” (Fides et Ratio para. 108) John Paul believed that Mary Seat of Wisdom is a parable that illuminates the message of the entire encyclical. Lisa’s question about the need to be Marian in our work should be viewed in this light, I think. The Church can never be viewed as a “technological device” if it is viewed as the diakonia (minister) of the superabundant truth of the Gospel. And, like Mary, when we submit to the demands of our faith, we do not lose our freedom or autonomy, but the fullness of meaning of our lives becomes available to us.

Next, turning to the Augustinianism of Pope Benedict XVI, Tom brings up an interesting question: To what extent is his thought influenced by other German theologians? While I’m not sure that he has been greatly influenced by Martin Luther, there are clearly some German Protestants who have at least indirectly had an influence on his thought as with all theological discourse. Exploring this question raises issues about the Holy Father’s view of the relationship between faith and reason.

In particular, the work of Karl Barth, which influenced many Catholic theologians, touches on a controversy regarding faith and reason that still shapes theology today. Barth, like many German theologians of the time, was reacting to the near absorption of the Lutheran Church by the Nazi state, but for a few hold-outs like Dietrich Bonhoefer. Catholic theologians such as Henri de Lubac, Hans Urs von Balthasar, the young Karol Wojtyla, and an equally young Joseph Ratzinger were all influenced in different degrees and ways by Barth. His thought stands at the center of controversial beliefs about the relationship between Christian faith and modern culture, which took the form in the early twentieth century as debates on the relationship between nature and grace. In these debates, some argued for a hierarchical separation of nature and grace, which resulted in a dualistic understanding in which the natural world came to be seen as autonomous of grace. Since they viewed the State as a natural (and therefore graceless) secular community, they separated political and social theory from theology. In assuming a putatively neutral “natural” reason, they were led to theological strategies that sought to accommodate modern philosophy or to correlate Christian doctrine with modern ideas.

Karl Barth argued that a Christian account of the world and of the moral life must be rooted in theology that resists the attempt to translate or correlate the contents of faith in terms of natural reason because he argued there is no possibility of a neutral contact point between the Gospel and public rationality. Instead Barth believed that the Revealed Gospel subverts cultural givens, even such basic assumptions as norms of rationality, standards of argumentation, and the very conception of Truth. In a critical point in his argument, Barth argues:

The Gospel is not a truth among other truths. Rather it sets a question mark against all truths . . . So new, so unheard of, so unexpected in this world is the power of God unto Salvation, that it can appear among us, be received and understood by us, only as a contradiction. The Gospel does not expound or recommend itself. It does not negotiate or plead, threaten, or make promises. (Epistle to the Romans 38-39).

Barth's project was furthered in the developments of the so-called Yale School of post-liberal theology associated with Hans Frei and George Lindbeck.  Among Catholic thinkers, the most similar insights can be found among the writings of Henri de Lubac, Yves Congar, and Hans Urs von Balthasar (collectively these thinkers were pejoratively called the nouvelle theologie by their opponents). These theologians emphasized the strategy of resourcement, which seeks to recover insights from the early fathers and patristic theology. In particular, de Lubac sought to gain better purchase on the nature/grace dialectic that had emerged in some forms of scholastic thought (what Balthasar called a “juridical-naturalistic pattern of thinking” that he believed had developed, first with Cajetan, then Suarez).

An important observation is made by Alasdair MacIntyre in his Gifford Lectures, published under the title, Three Rival Versions of Moral Enquiry. According to MacIntyre, after Leo XIII’s encyclical, Aeterni Patris in 1870, some Neo-scholastics wrongly read St. Thomas as a counter to modern Cartesian concerns with epistemology. MacIntyre argues first that the epistemological concerns of Descartes were already present but un-thematized in later medieval Thomism, particularly in Suarez. According to MacIntyre, Henri de Lubac argued that the Suarezian interpreters of St. Thomas, partly because of Stoic influences, wrongly believe that St. Thomas sought to separate philosophy from theology by positing a pure natural reason independent and autonomous of grace. De Lubac was influential on the founders of the so-called “Radical Orthodoxy” movement (John Milbank, Catherine Pickstock, Graham Ward).

MacIntyre’s position is similar to de Lubac’s who also witnessed this dualism and argued that it rests on the presumption of an autonomous nature which is independent of grace. This thesis, however, misstates the theological interpretation of creation, since the only goal that God has set for human nature, the beatific vision, is rendered pointless and meaningless if there could possibly be a purely natural goal for human life. What is symbolized in the supernatural mystery of Christ is essential to the meaning of Christian life and thought. As a dependent creation, nature is always already a divine gift, and therefore cannot be autonomous (lit. self-legislating). Reason itself participates in grace, so any dualistic opposition of faith and reason is for de Lubac purely a product of modernity. On his account, the Christian position holds faith to be a species of reason.

These issues were not taken up explicitly by John Paul II, but in his encyclical Fides et Ratio he gives some guidance about the limits that one can hope to achieve in the translation or correlation of Catholic thought. John Paul suggests that the Catholic mode of signification contains certain features that are irreducible in the sense that the meanings of these doctrines elude other modes of signification. That is to say, faith allows us to use symbols to explore reality in ways that cannot be fully grasped by reason unassisted by faith. The essence of Christian faith, he contends, requires understanding the meaning of human beings as creatures created in God’s image, yet fallen and redeemed in Christ.

Although Benedict XVI was influenced by de Lubac, he was more influenced by his friend, Hans Urs von Balthasar. Aidan Nichols, in his biography of Joseph Ratzinger, notes this in writing about his approach to the concept of a purely natural philosophy. Following Balthasar, “Ratzinger believes that the sharp distinction between philosophy and theology, as respectively the reflexive tasks of natural reason and supernatural understanding, presses the classic Thomist texts beyond what they can, or should, bear. And once, as in some circles of the Neo-Thomist revival, philosophy is assigned to the sphere of pure reason, and theology to that of revelation, the methodological relation of the two becomes exceedingly problematic.” Against Barth, however, he argues that theology needs philosophy too. As Nichols puts it, “where ontology, in particular, is abandoned, as it was in nineteenth century German Protestantism, the idea of God itself collapses.” Healing the wounds caused by the distortion of St. Thomas Aquinas in the hands of late medieval Thomists like Cajetan and Suarez is, I submit, a goal of this pontificate as it has been for the Holy Father throughout his life.

In order to accomplish this goal Ratzinger has written of a three-tiered understanding of the relation of faith to reason: First, they share a common orientation to the question of the meaning of death. This is the existential "thorn in the side" that calls for a meaningful explanation not only of death, but of life itself. Second, the claim to rationality is shared by both, such that it is not irrational to have faith. And, third, the conviction that the power of the logos, duly received, will satisfy the deepest longing in the human heart. "By means of Christians, the Logos becomes an answer to human questioning."

Discourse on law draws on conceptions of justice and human dignity that take on unique significance and meaning from within the Catholic faith. Some, like Tracey Rowland, argue that in fact words like “rights” are inseparable from secular rights theories and moral anthropologies. For this reason, she argues (controversially) that the Church ought to drop the term all together. I think both John Paul and Benedict would be more open to rights than Rowland. Both would seem to endorse the idea of rights (particularly useful when speaking to a secular audience). I think Rowland’s work is exceptionally useful for Catholic legal thought precisely because it highlights the difficulties of using a term that we take so automatically as the (only) legitimate goal of legal systems. Rowland’s work reminds that we should use the concept carefully and realize that in the fallen world, rights can actually retard human freedom.

This is particularly true in the realm of economic rights. John Paul was always somewhat grudging in his endorsement of them. A “free economy” surely offers advantages over planned economies (as of his native Poland under Soviet occupation). But, as the endorsement of economic libertarianism is far from his position: the combination of human sinfulness, private ownership of capital assests, and a free market will inevitably produce market failures and injustice. (Centesimus Annus para 35). Sollicitudo Rei Socialis, para 16). I see nothing in Benedict XVI’s thought to date that would substantially alter this position.

The Holy Father’s Augustinian studies will undoubted shape his approach to social thought. St. Augustine argued that the very fabric of social existence, the glue if you will, that binds people together into communities is best understood, not as shared economic interests or a shared rights, but as an agreement to share in the objects of love. (City of God, Book 19) He wrote of the transformative power of love to change the way a person values life and all things in it. Dante captured this so well in the opening sentences of his meditation on his beloved Beatrice. He writes: “In my book of Memory, in the early part where there is little written, there comes a chapter with the title, “Here a new life begins.” Dante is referring to the transformation that Beatrice made in his life, giving it meaning and purpose. Similarly, in his first encyclical, Deus Caritas Est, the Holy Father writes of the transformative power of God’s love which is the foundation of Christian life. He writes, “Being Christian is not the result of an ethical choice or a lofty idea, but the encounter with an event, a person, which gives life a new horizon and a decisive direction.” Later he writes, “Love promises infinity, eternity—a reality far greater and totally other than our everyday existence.” What classical metaphysics refers to as a telos or end for the human person is experienced by the person as a longing or a desire. The existential human problem is how to desire well for a fulfilled life.  Purification and growth to maturity are necessary to achieve the best end for the person. The sort of erotic love of the young Dante for his Beatrice must be brought to maturity and healed so that the person can achieve the true splendor that is possible only with a real discovery of the other. When erotic love deepens into agape, concern and care for the other, it is no longer self-seeking, but ready and even willing for sacrifice. This giving of oneself for another is the fulfillment of human life, made possible through community and in community.