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, May 17, 2007

How Not to Criticize Jerry Falwell

By Thomas Berg

While we wish R.I.P. to Jerry Falwell, it's also legitimate to debate his legacy.  I have at best mixed feelings about Falwell, who I personally think emphasized some important values but was highly selective among Christian teachings, and who made some truly despicable public statements (blaming gays for 9-11, peddling videos accusing Bill Clinton of drug-related murders).  [MODIFICATION: I should not downplay Falwell's leadership against abortion, and I should say "very important values" and simply "mixed feelings."] However, this editorial in the Minneapolis Star-Tribune makes criticisms of Falwell that would earn it an F from me in a college (maybe even a high-school) persuasive writing course:

One did not have to believe in the Rapture to see that, under Falwell's leadership, huge numbers of Christians disappeared from mainstream U.S. politics. . . .

Even now, almost two decades after the Moral Majority was disbanded, Christians are divided about their proper role in the public square. Instead of helping them see what they had in common -- as, for example, Billy Graham has done for many -- Falwell urged them to focus on the issues that drove them apart. It's hard to see what's moral about that.

The Rapture thing is cute, but I have no idea what the editors are talking about, since Falwell is known for bringing fundamentalist Protestants into the mainstream political process, from which they had separated themselves for decades.  Indeed, the usual criticism is that they've inappropriately taken over one of the two major political parties, not that they've "disappeared" from major-party politics.  As for the ensuing paragraph about divisiveness, I'm now awaiting the Star-Trib editorials saying it's immoral for Christian clergy to denounce the Iraq war as unjust, since that's an issue that "dr[ives] Christians apart."  Or that it's immoral to denounce cuts in anti-poverty programs or in taxes on the rich, since Christians disagree about those matters too.

People in public debate find endless ways to try to avoid having to take on the merits of their opponents' religiously motivated positions,  Of course, the editors would have avoided these mistakes if they'd simply read RIck's great "Religion and Division" piece.

Tom 

   

Wednesday, May 16, 2007

The Moral Anthropology of Spiderman 3

By Thomas Berg

I didn't see Spiderman 2, and I gather all of the movies in the series are about power, responsibility, and temptation, so maybe this is old news ... but I found Spiderman 3, which our family saw this weekend, chock full of moral lessons of Christian import for kids and adults.  (It's also full of too many villains and plot lines to develop well, so it's not a perfect movie, but ...)  Without writing any spoilers, I can say that our hero Peter's personality is taken over by a very unwholesome influence -- but the point is, the malignant agent simply magnifies the bad tendencies he's already shown.  It was a nice metaphor of how original sin is revealed and compounded by worldly temptations and social forces.  There's also a lesson about our always ultimately having the choice to do good that may underestimate the power sin can have over our wills, but when that's taken together with the depiction I just mentioned of how evil is latent in us -- and starts to feel more and more comfortable the more we continue in it -- the overall moral anthropology in the movie is quite Christian.  Christianity Today liked it too:

[T]he themes are as straightforward as Sunday school lessons: the dangerous allure of vengeance, the power of forgiveness, the nature of true love. There's even a church standing at the center of the movie's widening gyre, where Peter wrestles with his sinful nature, that all but guarantees Spider-Man 3 a place on Christian film-critic top ten lists for 2007. An admirable act of sacrifice during the climactic battle is sure to inspire a Christian-market spinoff book: The Gospel According to Spider-Man.

Tom

What "the rule of law" doesn't require

By Patrick McKinley Brennan

Brian Tamanaha says he and I agree about Aquinas.  I'm not sure we do, but I'll leave that for another day.  Brian's account places an emphasis on coercion that I think occludes what, on Aquinas's account, makes law obligatory.

Now, to the matter at hand.  I'll stipulate that Brian is right that the rule of law requires that "lawyers for the Justice Department must bind themselves by their own will to abide by and enforce the law."  Brian's next claim, in the immediately succeeding sentence, is that the "systematic ideological vetting in the hiring of Justice Department lawyers poses a serious threat to this crucial aspect of the rule of law."  But which "crucial aspect" is he referring to?  The question, which I take to call for an empirical answer, is whether those who enter after a process of "systematic ideological vetting" are in fact, or are likely to be, successful in "bind[ing]" themselves to abide by and enforce the law.  If the answer be in the affirmative, then I'm not sure what the worry is with respect to "filling the Department with lawyers who will apply the law in a manner that furthers ideological goals."  If the people getting hired at Justice don't follow the law, that's not a threat to the rule of law, that's a failure of the rule of law.  If the people getting hired at Justice are following the law, then, pro tanto, the rule of law is secure.

Now, let me be clear.  First, I do think that prudence dictates against some of what I understand the DOJ to have been up to with respect to hiring.  But I wouldn't leap, as Brian seems to, to the worry that the rule of law is threatened when people are given preference for their political views and commitments.  There may be things to object to in the process that the DOJ has apparently recently used, but I don't think "the rule of law" is is lost or on the ropes until you can say that people aren't following -- or, perhaps, are about not to follow -- the law.  To acknowledge the elephant in the room, Article III judges get nominated in part because of their political and moral commitments.  The question going forward is always whether, as an empirical matter, each individual judge is following the law.  Why is the issue importantly different at DOJ?  Second, with respect to what officials at DOJ do in the interstices of or the open-textured spans of "the law," Congress could seek to affect it by requiring that appointments by politically balanced, on the model of the "independent commissions."  But, becasue Congress hasn't sought to do so, and because so far forth the evidence seems to be that the appointees are following the law and interpreting it in a way that is consistent with our traditions of interpretation, there is no loss of, nor a demonstrable threat to, the rule of law.  Again, I'm not saying the "screening" we're hearing about was prudent.  In the end, I suspect Brian of trying to get too much from "the rule of law," perhaps in part because objections that sound in prudence may require a moral or political theory that is contestable in a way that Brian thinks "the rule of law" is not.  The "rule of law" seems a strange weapon with which to attack "ideological bias" that has not been demonstrated to lead to lawlessness or unlawfulness.           

Aquinas, DOJ, and the Rule of Law

By Rob Vischer

Brian Tamanaha invoked Aquinas to support his criticism of the Attorney General's ideological screening of DOJ applicants.  Patrick Brennan objected to this particular use of Aquinas.  Now Brian offers this response:

Patrick and I don’t disagree about Aquinas.  I assert that Aquinas supported the rule of law, that Aquinas recognized the logical and pragmatic problem that the sovereign/prince cannot be bound to the rule of law because a coercive power cannot coerce itself, and that Aquinas concluded that only by a commitment of his will can the sovereign be bound to the law, and he urged that sovereigns should make this commitment (for “whatever law a man makes for another, he should keep for himself").  Patrick does not dispute any of these points.

Where we disagree is in how (or whether) these views might be relevant to recent events at the Justice Department.  One can legitimately object that the situations are so different that there is no direct relevance, but it is nonetheless useful to draw on Aquinas’s thought to help reflect upon the situation.

I suggest that in our system the Justice Department embodies and wields the coercive power of the “sovereign,” and that the modern equivalent of Aquinas’s position entails that lawyers for the Justice Department must bind themselves by their own will to abide by and enforce the law.  My argument was that systematic ideological vetting in the hiring of Justice Department lawyers poses a serious threat to this crucial aspect of the rule of law.  This is based upon my assumption that the ideological vetting is being done with the specific aim of filling the Department with lawyers who will apply the law in a manner that furthers desired ideological goals.

With respect to this crucial issue, Patrick says only this: “The screening may raise people’s worries that they’ll be incapable of following the law that has been laid down, but that’s another matter.”  He then moves off to discuss other aspects of Aquinas’s thought (which I do not raise).

Patrick can wave off the very point of my post as “another matter,” but perhaps I can put it in terms that will help demonstrate that this worry about the screening is precisely what matters.  Rather than hire only Republicans with religious beliefs, as apparently was the case, let’s say that, in the next administration, rigid ideological vetting is implemented to hire only pro-choice Democrats, or only atheists.  Surely Patrick would object to this, and correctly so, as an attempt to undermine the rule of law by institutionalizing an ideological bias among the lawyers in the Department.  And that was my point.

The New Mission Field

By Rob Vischer

In the Washington Post, former Bush speechwriter Michael Gerson reports on the growing power of the global south within Christianity, prompted by Nigerian (Anglican) Archbishop Peter Akinola's installation of a missionary bishop to America.  An excerpt:

Some American religious conservatives have embraced ties with this emerging Christianity, including the church I attend. But there are adjustments in becoming a junior partner. The ideological package of the global south includes not only moral conservatism but also an emphasis on social justice, an openness to state intervention in markets, and a suspicion of American economic and military power. The emerging Christian majority is not the Moral Majority.

But the largest adjustments are coming on the religious left. For decades it has preached multiculturalism, but now, on further acquaintance, it doesn't seem to like other cultures very much.

Carozza on Subsidiarity in International Law

By Rob Vischer

Notre Dame law prof Paolo Carozza has just posted a 2003 paper that is well worth reading titled Subsidiarity as a Structural Principle of International Human Rights Law.  Here is the abstract:

This article argues that the principle of subsidiarity should be recognized as a structural principle of international human rights law primarily because of the way that it mediates between the universalizing aspirations of human rights and the fact of the diversity of human communities in the world. The idea of subsidiarity is deeply consonant with the substantive vision of human dignity and the universal common good that is expressed through human rights norms. Yet, at the same time it promotes respect for pluralism by emphasizing the freedom of more local communities to realize their own ends for themselves.

Looking at the place of subsidiarity in international law generally, the article argues that subsidiarity is a more accurate and powerful way of understanding the relationship of human rights to international law and to the roles of states in the global community. Using the constitutional structure of the European Union as a starting point, the article presents subsidiarity as a conceptual alternative to classic notions of state sovereigny, which relativizes but does not eliminate the roles of nation states. The analysis shows that in many ways, subsidiarity is already immanent in the existing structures and doctrines of international human rights law, and provides a better explanation for a number of otherwise problematic features of international human rights law, such as the “margin of appreciation” and reservations to universal human rights treaties.

Finally, the article defends the idea and use of the principle of subsidiarity against critiques that resist the legal pluralism that subsidiarity fosters and protects. It argues that philosophical, legal and political objections to pluralism in international human rights law are misdirected, and that an international legal system structured in accordance with subsidiarity can best combine the values of universality and diversity that respect for human rights requires.

Making John Ashcroft Look Heroic . . .

By Rob Vischer

Ask the person on the street about bold action taken by John Ashcroft as Attorney General, and the most frequent response might involve the concealing of nude statues.  Not anymore.  Even if Aquinas wouldn't necessarily oppose Alberto Gonzales's ideological screening of DOJ applicants, can anyone imagine the Angelic Doctor pulling a stunt like this?  What does this say about Gonzales's respect for the rule of law?

Tuesday, May 15, 2007

My Last Thoughts about France

By Thomas Berg

        Speaking of "Morning’s Minion" at the Reasons and Opinions blog, he has followed the Sisk/Berg debate  here about France and fills in statistics on some of the points we made.  Many of his numbers support my claim that while France has significant problems, we shouldn't join Greg in simply dismissing it as a "social disaster," and in some areas, especially health care and child welfare, ways its social-democratic approach produces better results than our approach.  On the other hand, Morning’s Minion notes that job protections for French workers come at the expense of the young, especially Muslims, who have high unemployment rates, which is obviously a sizzling kettle that has already boiled over a few times.  These judgments seem quite reasonable.  My point was never that France doesn't have significant problems – only that it shouldn't be dismissed as a "social disaster," especially when we have some pretty large bits of wood in our own eyes (in addition to the other points, think of how many of our young minority men are in prison, often for minor drug offenses, and not just unemployed).  I thought I caught more than a whiff in Greg’s original post of simple contempt for the French, especially (as I noted) in his casual assertion that despite electing a president who promised economic liberalization, the French will never make adjustments (because, after all, they’re the French).  There’s been plenty of demonization of France in the air recently, and it’s no better than the demonization of America by French and other European pundits (cataloged, e.g., in this book).  But I accept Greg’s assurance to me that this was not his goal, and that he chose to write about France because of the recent election.

        Greg's latest post connects reliance on government to the loss of faith in France.  He doesn't explain the mechanism, but I'll grant the point: reliance on government services can reduce people's reliance on church-related schools or social services, and thus can (primarily in the former case) undercut the transmission and reproduction of the faith.  That’s why I believe that religious schools and social services should be able to participate in government benefits programs, and why I’d like to see government ensure a level of assistance through taxes but rely on a variety of providers to deliver the services.  Unfortunately for Greg's simple argument, though, the French, like Europeans in general, give much more state assistance to religious K-12 schools than we do, and their social-democratic attitudes have a lot to do with that: they believe that positive government action can promote freedom, in this case freedom among educational options.  By contrast, our more negative attitude to taxing and spending explains in part why opposition to state aid to religious schools has been so strong in America: more of us think that state aid must be an imposition on taxpayers rather than a facilitation of families’ freedom.  (The French state aid, however, does have the problem of coming with lots of strings that have harmed the distinctiveness and autonomy of French Catholic schools.)

           Finally, although I agree that growth of government can reduce religious vigor, it seems to me we have to recognize that the loss of Christian faith in France, and Europe generally, has had a lot of other causes.  One was that for many decades before and after the French Revolution, the Church became historically associated with only one part of society (most the aristocracy and rural citizens) and one part of the political spectrum.  De Tocqueville had France especially in mind when he commended American Christianity for not getting too tied to one political party and thus losing the ability to reach half the population.  A second major factor was that the terrible destruction of lives and land from two world wars – effects of a kind and size that we never suffered here – made doubt in a providential God much more severe and widespread among Europeans.  Cf. Reinhold Niebuhr’s description in The Irony of American History of how Americans’ material good fortune – rich lands, the protection of two oceans – made it easier for us to believe in a providential God.  It seems to me that the loss of religious faith is in significant part separate from reliance on government, or a cause of that reliance, and only in part a result of it.

The other Aquinas and the Bush administration

By Patrick McKinley Brennan

Rob beat me to Tamanaha over at Balkanization, but now I have even more say, though I'll try to keep it brief.  As far as the relevant context goes, Aquinas is not the ally against the Bush administration that Tamanaha makes him out to be.  Aquinas does think that the prince/legislator (the English Dominicans' translation of the Summa theologiae that Tamanaha relies on, the standard translation, renders the Latin word "princeps" and the like as "sovereign," but this is a seriously misleading mistranslation, a function, I'm afraid, of the time at which the learned translators were at work), should follow the law, even though no one can legally coerce him to do so.  But does the screening of Justice Department applicants entail a disregard of, or a call to disobey, the law?  As such, no.  Tamanaha's recent work has worried about the pouring of ideological agendas into the skins of the rule of law, but the question about the Justice employees who get appointed is simply whether in their work they are following the laws set down.  The screening may raise people's worries that they'll be incapable of following the law that has been laid down, but that's another matter.      

One should add, of course, that Aquinas's point in q. 96 art. 5, from which Tamanaha quotes, is not that the princeps cannot change the law or act beside the letter of it.  At the end of the reply to obj. 3 of 96.5, Aquinas writes "Again the princeps is above the law, in so far as, when it is expedient, he can change the law, and dispense in it according to time and place."  In the next question, 96.6, Aquinas further spells out the conditions under which someone who is under the law can act beside the letter of that law.  The permission, shaped and limited by the law's necessary commitment to the common good, is impressive, especially from the perspective of the flat-footed textualism or originalism that some conservatives and others insist is the remedy for our cultural woes.

Tamanaha writes that "the ultimate guarantor of the rule of law is the power to threaten and exert violence."  Aquinas does not agree.  On Aquinas's account, the reasonableness of the law is a necessary condition of its being binding, and its reasonableness comes from, among other sources, its being in the interest of the common good.  This alignment with and contribution to the common good, this "reasonableness," is, of course, no part of the account of Hobbes, whom Tamanaha identifies as Aquinas's ally.  For Aquinas, what we might call "the rule of law" occurs focally in the the prince's or his subjects' free conformity to the reasonable dictate of the prince, that is, the person charged with the common good of the community.  When force -- even lawful force -- has to enter, in some sense the rule of law has broken down or failed.

In sum, or so it seems to me:  Vague worries about the arrival of ideology that threatens "the rule of law" are a distraction from the clean questions put by Aquinas:  Are the officials operating within their grant of authority under the laws set down, that is, the reasonable ordinances put in place for the common good?  The reason why we shouldn't talk about "sovereigns" in this context is that, when that portentous word is used, there's inevitably an (at least) implicit claim that one can be above the directive force of the law.  On Aquinas's account, if the law be reasonable, that is, if it be a genuine law, no one is above its directive force, even if no one is in position lawfully to impose it through coercion.          

Did the Catholic Justices "vote the wrong way again"?

By Rick Garnett

Morning's Minion, over at the (excellent) Reasons and Opinions blog, says "yes."  My view is a bit different.  But, as Michael and Eduardo have argued, I could be wrong . . .

Morning's Minion writes:

"[T]here are those who will undoubtedly defend the actions on the majority on legal technical grounds. There are those who will argue that there is no authoritative Church teaching directing how to vote on these kinds of procedural grounds. But this is surely misguided. While the Church does not claim that the death penalty is always and everywhere wrong (like abortion), it does carve out conditions under the death penalty may and may not be immoral, namely, that there must be no other way to defend society (see here, here, here, here, and here for more). No death penalty in the United States meets this strict condition, and hence Catholics are obliged to oppose capital punishment in this country. In the present case, it would seem that "erring on the side of life" calls for granting a new trial.

It is not clear me, though, that the "hence", above -- which I agree applies to Catholic citizens and legislators -- applies to Justices deciding cases presenting technical questions of criminal procedure.  In any event, Reasons and Opinions is a great blog.

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