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, August 30, 2007

Labor Day

By Susan Stabile

As we approach Labor Day, MOJ readers may be interested in reading the Labor Day Statement of the U.S. Catholic Bishops, which can be accessed here.   The statement reminds us that "the moral dimensions of work and workers' rights are at the core of our Catholic social tradition," and that too many workers, both in the United States and in the rest of the world, still lack decent wages and working conditions and many others do not have the opportunity to work at all.

The statement also addresses the failed debate on immigration reform, recognizing that "at is core, immigration is about workers who come to our land to try to better lives for themselves and their families by their labor."

Previous Labor Day statements of the U.S. Catholic Bishops are available here.

Chris Eberle Responds to Andy Koppelman

By Michael Perry

MOJ-friend (and philosopher extraordinaire) Chris Eberle responds below to Andy Koppelman's 8/29/07 post at Balkinization (here).  (Chris, you may remember, is the author of the state-of-the-art book, Religious Conviction in Liberal Politics (Cambridge, 2002).)  Chris speaks:

Andrew Koppelman (Balkinization, August 29) lays out four distinct formulations of the claim (A) that human rights morality lacks an adequate secular grounding -- epistemic, ontological, sociological, and historical.  Only the ontological construal of (A) seems to me to be of serious theoretical interest.  But Koppelman’s understanding of that ontological construal seems not to capture the sort of claim that you [i.e., Michael Perry] have been inclined to make.  (Or should I say, that sort of claim that I think you should make!) 

As I understand your position (and that developed by Nick Wolterstorff), crucial to human rights morality is the claim that each and every human being has ‘inherent dignity’ – sanctity, great worth, excellence.  It’s because each human being has inherent dignity that we ought to treat each human being as inviolable.  (I would say, it’s by virtue of the fact that each and every human being has great worth that each human being has a certain set of natural human rights.)  Now the natural question to ask at this point is – what is it about each and every human being by virtue of which s/he has this inherent dignity?  What property does each and every one of us possess by virtue of which each of us has great worth and yet equal worth?  Your view – Sarah’s view – is that it’s the property of being loved by God – that’s a relational property each human being has and has in equal ‘measure.’  Note that this is an ‘ontological’ claim – the issue is not how we know whether each human being is loved by God, or whether Christians were goaded to connect their belief about God’s love with rights-talk by their secular Enlightenment critics, or whether those who deny that God loves us can fulfill their moral obligations, but whether there is anything about each member of the human species by virtue of which each human being has this very special moral status.

The issue put to secularists is whether they can identify any non-theological property that can take the place of being loved by God.  Of course, secularists can just claim that inherent dignity just attached to humanity full stop.  But that’s a pretty unsatisfying position.  Rather, it’s natural to focus on capacities – for moral agency or rationality or such.   But these views are difficult to defend, so I think. (Long, long argument…..)

Note that one can claim that inherent dignity supervenes on some appropriate relational property each human being bears to God without in any way committing oneself to the Divine Command Theory (which is a theory about moral requirement, not human dignity) much less the more global claim that a materialist world doesn’t contain the sorts of entities that could make moral claims true.   The ontological issue raised by your variation on the rights-requires-religion claim is the comparatively narrow one of whether there really is anything about each human being that grounds our widespread sense that humans as such have some very special moral status. 

Note that you also want to raise a further question – one forced upon you by your commitment to internalism, viz., why we should care about the supposed relational facts at issue.  From my externalist perspective, the fact that human beings have great worth provides me with all the reason I need to treat them in a certain way.  But for you, that fact just raises a deeper question – why should the fact that each human being has inherent dignity have any claim on my actions?  That’s the issue I take you to focus on in your essay “Morality and Normativity.”

Wednesday, August 29, 2007

Christianity, Christendom, and Human Rights

By Michael Perry

In thinking about what Jack Balkin said, I suggest that Michael Scaperlanda, Charles Reid, and all of us ponder what the eminent philosopher Charles Taylor (who is Roman Catholic) has written.  Taylor argues that the "affirmation of universal human rights" that characterizes "modern liberal political culture" represents an "authentic development[] of the gospel . . ."  Taylor, A Catholic Modernity? 16 (Oxford, 1999).  But then Taylor goes on to make this sobering (to Catholics and other Christians) observation:

"[M]odern culture, in breaking with the structures and beliefs of Christendom, also carried certain facets of Christian life further than they ever were taken or could have been taken within Christendom.  In relation to the earlier forms of Christian culture, we have to face the humbling realization that the breakout was a necessary condition of the development."

Id.  For Taylor's elaboration of the point, with particular reference to modern liberal political culture's affirmation of universal human rights, see id. at 18-19.

The Medieval Foundations of Modern Human Rights

By Michael Scaperlanda

In light of Jack Balkin's assertion that modern theistically motivated human rights thinking grows out of the Enlightenment and my own inadequate response to Jack, I asked a couple of medievalists to comment on the medieval foundation of modern human rights.  I am thankful that law professor Charles Reid responded with this thougthtful post:

"One of the most basic features of theistic rights thought is a respect for the integrity of the human person.  I would submit that the modern vocabulary of natural rights/human rights has its origins in the twelfth and thirteenth centuries.  And standing behind this development is a sense of the person as capable of seeking for himself the goods of salvation.  Allow me to make the point indirectly, first, and then more directly:

My indirect argument would focus on the linguistic universe that came to surround rights in the thirteenth century.  The medieval canon lawyers began to list synonyms for the word “right” (ius).  These synonyms included:  Libertas (liberty); Potestas (power); Facultas (faculty or capacity); Immunitas (immunity or privilege).  These are the main synonyms although there were a few others also.  What the use of these synonyms allowed for was the development of a concept of the human person that was capable of self-direction.  This self-direction was capable of manifesting itself in a variety of contexts.  Some contexts would be quite mundane.  Take medieval elections:  The Church used elections to resolve an enormous number of problems – bishops were elected by cathedral chapters; cathedral chapters retained the power to vote on important decisions; guilds and sodalities voted on all sorts of business matters; and so on.  There is a vast number of papal decretals indicating that medieval elections were hotly contested.  The presupposition behind these elections, however, was constant:  that the person was capable of governing his own affairs in community with others.

Other acts of self-direction were quite profound.  The new rights vocabulary also allowed the canonists to speak of the right to make basic choices on how best to seek the spiritual development required to achieve salvation.  One had the liberty to seek a vocation to the priesthood (one did not have the right to compel a bishop to ordain one a priest, of course, only the right not to be impeded in this vocation by third parties).  The life of Thomas Aquinas contains a wonderful illustration of this:  Thomas’s family opposed his desire to become a Dominican friar; he was actually imprisoned by the family for a while.  But because he had a basic right to seek his vocation, his family eventually had to cease and desist in their efforts to impede his quest.

Not only in the area of religious vocation, but in the decision to marry, freedom became the constitutive element.  To marry, one had to exchange freely given consent.  Free consent became the foundational element of marriage.  Family coercion could and did serve to invalidate marital decisions.

These developments open the door to my “direct” argument:  in the schools of philosophy beginning in the latter twelfth century we see important parallel developments:  first, the human personality comes to be conceived of as possessing a basic volitional capacity.  The personality has the power of choice; and the power to be bound by those choices.  And, related to this, the human soul comes to be conceived of in highly individualized terms.  An early medieval writer like Dionysius the Areopagite understood the soul upon death to become absorbed into a larger divine “godhead.”  Now, however, beginning in the twelfth century, we see a highly developed notion of individualized survival after death.  Not that it was not present before.  But it is much more highly developed beginning in the twelfth century.

And, this, then, allows lawyers and philosophers to take the final step:  to argue for the integrity of the person based on the possession of these rights.  Maxims of law were developed specifically for his purpose, most especially the maxim, that no one should be deprived of his right “sine culpa” – without fault.  And when we get this notion of due process, we stand at the door of modern conceptions of right.  And this notion of due process was firmly in place by the middle thirteenth century."

God's Warriors

By Rob Vischer

Over at First Things, Nathaniel Peters reviews Christiane Amanpour's series, God's Warriors, which aired (to relatively high ratings) on CNN, and which Rick blogged about earlier.  Here's an excerpt from Peters:

When speaking in her own voice, Amanpour generally echoes the claims heard often in the media. In the first installment, for instance, she begins by defining the common trait of all three types: “They have in common . . . the belief that modern society has lost its way. They say that God is the answer. They want God part of their daily lives, back in the seat of power.”

Perhaps. And yet, except for that last clause, this definition describes many religious believers, not all of them extremists. There seemed to be few threads that connected God’s warriors, beside the fact that religion informed their politics to some degree. Indeed, Amanpour tends to over-generalize the parallels among the three groups she examines. She looks, for example, at the rules about skirt length and unsupervised Internet use for the Christian teenagers in BattleCry. These rules immediately remind Amanpour of the Taliban—although they are, in fact, little different from rules that one might find at any Christian school. Longer skirts, one must note, do not automatically portend theocracy.

Tuesday, August 28, 2007

Jindal

By Eduardo Penalver

Stephen B. and I may disagree on a number of issues, but we agree on this attack on Jindal.  I defend him at dotCommonweal here.

Affirmative Action in Law Schools Critiqued by USCRC

By Steve Bainbridge

This is way off topic, but since all of us are academics and most of our readers probably have an interest in legal education, it might be worth noting that the US Civil Rights Commission today issued a very critical report on affirmative action in law schools that relies heavily on the work of my UCLA colleague Rick Sander.

Defending Bobby Jindal

By Steve Bainbridge

Bobby Jindal is a former Rhodes Scholar who had scholarly aspirations before going into politics. He's currently running for Governor of Louisiana and recently came under attack for some Catholic apologetic juvenalia. I defended him here.

What Ground for the Morality of Human Rights?

By Michael Perry

Prompted (provoked?) by some misunderstandings, I decided to post a paper on SSRN a little sooner than I might have.  The title of the paper is Morality and Normativity.  The download link is below.  Here's the abstract:

I have explained why I am skeptical that there is a plausible secular ground for the morality of human rights. See Perry, TOWARD A THEORY OF HUMAN RIGHTS 1-29 (Cambridge, 2007). The blogosphere has recently yielded commentary--mainly, I think, at BALKINIZATION and MIRROR OF JUSTICE--on my argument. However, some of the commentary--in particular, by Brian Tamanaha and Andrew Koppelman--reflects serious misunderstandings of my argument.

1. My argument is not theistic. In the course of making my argument, I articulate a theistic position, which I attribute to someone named “Sarah”, but Sarah's position is not my argument. My argument is in part *about* Sarah's position—and also about some secular positions. 2. It is not as a theist that I make my argument. Indeed, some non-theists, such as Art Leff and Raimond Gaita, have made similar arguments. 3. Yes, some religious believers have been among the principal violators of human rights, and, yes, some theologies deny the claim that is at the heart of the morality of human rights, namely, that all human beings have inherent dignity. But my argument nowhere presupposes, claims, or hints to the contrary.

I hope that this paper, MORALITY AND NORMATIVITY, helps to clarify my argument. The paper--which I first presented at Fordham Law School as the Natural Law Colloquium Lecture (February 2007)--is my contribution to a symposium on the moral and legal philosophy of John Finnis. The symposium, which includes a response by Finnis, will be published in LEGAL THEORY.

As we all know, there is not just one morality in the world; there are many. By a "morality", I mean a claim or set of claims to the effect that human beings, either some or all, should live a certain sort of life--"should" in the sense of "have conclusive reason to". The morality Adolph Hitler espoused is radically different from the morality Mother Teresa espoused; nonetheless, each is a morality. "Hitler's 'morality' is not a morality," you reply, "because it is, to put it mildly, false. There is only one true morality, and Hitler's--least of all Hitler's--is not it!" To say that there are many moralities, however, is to say nothing about whether a particular morality--or indeed any morality--is true. There are many moralities--and the morality Hitler espoused is one of them. Of course, just as one can acknowledge that there are many moralities and reject every one of them as false, one can acknowledge that there are many moralities and affirm a particular morality as true--affirm as true, that is, the claim that one should live, that one has conclusive reason to live, the sort of life the morality claims one should live.

A morality may purport to be true for all human beings, by claiming that all human beings have conclusive reason to live the sort of life it claims all human beings should live. Or a morality may purport to be true only for some human beings. Either way, a morality may be false in one sense but partly true in another: Some, but only some, of the human beings for whom the morality purports to be true may have conclusive reason to live the sort of life the morality claims they should live. Conceivably, two (or more) moralities may both be true, or both be partly true, in this sense: One morality may be true for those, or for some of those, for whom it purports to be true, and another morality may be true for those, or for some of those, for whom it purports to be true.

Notice that it would beg the question to say to someone that the conclusive reason she has for living the sort of life a morality claims she should live is just that that sort of life is (for her) moral: The question is precisely whether the sort of life the morality claims she should live is (for her) truly moral; she wants to know whether in fact she has conclusive reason to live the sort of life the morality claims she should live.

The "ground of normativity" question--as I call it--can be asked about any morality; to ask it about a particular morality is simply to ask whether (and for whom) the morality is true and, if so, why--in virtue of what--it is true. Again, to say that a particular morality is true (for one) is to say that one should live--that one has conclusive reason to live--the sort of life the morality claims one should live; put another way, it is to say that one has conclusive reason to be(come) the sort of person who lives the sort of life the morality claims one should live. So to ask whether a particular morality is true is to ask what conclusive reason one has, if any, to live the sort of life the morality in question claims one should live. To ask the ground-of-normativity question about a particular morality is to ask what grounds the "should" in the morality's claim that one should live a certain sort of life; it is to ask why--in virtue of what--one should live that sort of life.

In this paper, I elaborate a particular, and particularly important, morality, which I call the morality of human rights (because, as I explain, it is the principal articulated morality that underlies the law of human rights). Next, I ask the gound-of-normativity question about the morality of human rights and proceed to elaborate a religious response. (It bears emphasis, first, that the religious response I elaborate—Sarah's response--specifically *rejects* the “divine command” conception of morality, and, second, that in the paper I do *not* argue that Sarah's response is [or is not] true or even plausible.) Then, after explaining why one might be skeptical that there is a plausible secular response to the question (i.e., to the question asked about the morality of human rights), I comment critically on some secular responses. Finally, I ask what difference it makes if there is no plausible secular response and if we reject any religious response.

There is no doubt plenty in this paper with which one can reasonably disagree, but the blogospheric commentary to which I referred above has not (yet) engaged—because it has misconceived--my argument.

Here's the download link:  http://ssrn.com/abstract=1009604

Ontology, Epistemology, and the Foundation of Human Rights

By Michael Scaperlanda

Ole Miss law professor Chris Green’s lively exchange in the comments to a post on Steve Bainbridge’s blog prompted me to write him to clarify my own thinking about how we present the theistic foundation for human rights in light of the Brian Tamanaha’s critique of Michael Perry's argument. (Rob Vischer's post, which started the discussion on MOJ, is here.)  Here is Chris’ response:

“Tamanaha's complaint is an epistemic one, and I think he's understanding the argument in those terms (understandably enough, since he's responding to Perry, who put the point in terms of a rational basis for human rights).  But I don't think we need our interlocutors to know things about God before we can point out problems for a materialistic worldview.  It's a legitimate point to say, hey, your worldview doesn't have any entities that could possibly provide ontological support for human rights and genuine morality, but mine does.  This might, indeed, be a reason to adopt a theistic worldview.

It's also possible that knowledge about God & the imago Dei & such would be a better route to knowledge about human rights and the content of morality.  But I think that even on a Christian view of things, the atheist has plenty of access to that sort of knowledge--the individual human conscience still testifies that certain behaviors are right or wrong, a la Romans 2:14-15, even though people suppress the truth about God, a la Romans 1:20-21.  For that reason, I wouldn't put the point as an epistemic one.  Of course, if I'm right that the ontology of materialism isn't rich enough to provide a basis for moral claims that are true in every possible world, then an atheist who accepts that ontology can't have as full a knowledge of the foundations for human rights as the theist can. But that lack of knowledge for the atheist or materialist is really parasitic on the poverty of his ontology, I think; it's not anything particularly related to knowledge.”

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