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.

Wednesday, January 21, 2009

Rick's Post on "Catholic" Legal Theory

In response to the question regarding the hallmarks of "Catholic" legal theory I would propose that it is rooted in social principles from our scriptural and ecclesial traditions.  Most importantly, it values human dignity.  Corollary to this central principle are respect for life, concern for the common good, the option for the poor, human rights (and duties), the importance of work, solidarity, stewardship, and subsidiarity.  These principles may not imply clear legal standards but they do provide a framework and vocabulary for discourse (which is in some cases bounded by the Magisterium).  While these principles inform our legal analysis as Catholic scholars, some or all of them may be shared by those outside our faith community. 

One could argue that such a principled approach provides a helpful perspective for analyzing and challenging claims by other legal schools of thought, be they critical, formalist, or utilitarian.  This does beg the question, though, whether "Catholic" legal thought ought to constitute a school of thought like any other, which I suppose is one of the questions Rick implicitly raises.  Can an overtly sectarian perspective play a constructive role in public reason?  Does a Catholic Legal Thought movement inevitably lose the depth and richness of our intellectual tradition in order to conform to the norms of the legal academy?  Can "Catholic" legal thought be intelligible or persuasive detached from the lived experience and practice of real people?  How does love remain the central virtue of any legal school of thought, both in discourse and practice?

Civility and Mutual Respect among "Conservative" and "Progressive" Catholics

The initial spark for the current ongoing discussion about "conservative" and "progressive' Catholics was a concern over the tone of a particular post.  One of the historical strengths of this site has always been out ability to disagree - sometimes forcefully - without personal attack and insult.  At least some of us have been concerned in recent months that that is less true now than it once was.  While I appreciate that perceptions as to whether a post is unacceptably offensive will vary, it is good to remind ourselves periodically of our need as Christians to maintain a tone and stance of civility, mutual respect and brotherly/sisterly love as we conduct our conversations.  In that vein, I think Amy's  post yesterday is particuarly welcome both regarding how one ought to react to another's post and how one ought to frame one's own response.

As to the direction we've veered in the discussion, I think a number of the posts demonstrate the difficulty of characterzing people.  Part of that is that there are different things going on: political conservatism or liberalism (or progressivism), degree of adherence to the Magisterium, differences in interpretation of the Magisterium, and many people don't fall neatly into one category or another.  So I've been very nervous at various people's attempts (either in posts or private e-mails over the past few days) to count up how many people are one one side or another, totally apart form the presumption involved in the characterization.

In any event, I trust we all agree that however one measures it, the site can not perform its function unless there is a broad diversity of views being actually expressed in our posts. 

What is Catholic About Dissenting Catholics

Rick is correct in characterizing my taxonomy of conservatives and progressives. Someone, who believes that birth control, homosexuality, and masturbation are always sinful, but votes Democratic is a conservative in my lexicon.

 

If one rejects the Church’s position on issues such as these and many others, one is not wholly wedded to the Magisterium. I am assuming for purposes of this taxonomy that the Church’s claims of deference owed to the non-infallible moral teachings of the Church are part of the Magisterium. I would put a person who rejects the latter view and who rejects many of the sexual teachings of the Church (while believing that he or she has rejected no part of the Magisterium) as a progressive for my purposes.

 

The more interesting question is why dissenting Catholics are not Protestants (which Rick did not ask, but would be a fair question). What is Catholic about dissenting Catholics? For some it may be a belief in the sacraments. For many it is the participation in a rich theological tradition, a community of discourse participated in by conservatives and progressives including many of the best liberal theologians in the world. I think there is a rejection of Protestant individualism. I think that there is Andrew Greely’s focus on the Catholic imagination. I think there is a greater emphasis on good and God’s grace working in the world in Catholicism and a greater focus on evil in the Protestant imagination. Although progressive Catholics dissent, they for the most part share a common faith with conservative Catholics (not a lot of debate here about the Apostle’s Creed – though if we focused on what each phrase meant we law professors could find much to discuss). The differences between conservative and progressive Catholics are usually relevant to legal theory. If I am right, they proceed from different conceptions of God's will. People have killed each other over such disputes. Here, feelings just run high; people try to be civil; they sometimes miss the mark. This blog may be better than others in being diverse and tolerating disagreement. I do not know. But it is far from perfect. It could be richer and more diverse.    

What Do Progressive Catholics Need To Think About That Conservative Catholics Don't

Michael S wonders what I have in mind when I say that the site would improve if there were a sufficient mass of progressive Catholics engaged in active posting to support discussion of issues that are raised in their minds. I did not have in mind immigration, the environment, and the like. Let me give some examples. Progressive Catholics think the institutional Church’s position on a variety of sexual issues is wrong. Once the absolutes of the Church are abandoned, many questions follow. If the use of contraceptives is not always wrong, is it ever wrong? When? If same sex relations are permitted, when are they not morally permitted? Should the same standards apply to heterosexual partners? If virtually all abortions should not be outlawed (leaving aside double effect issues), should some be outlawed. Which should be considered immoral, but not outlawed? If masturbation is not always wrong, is it ever wrong? When? If some people who have been remarried (without an annulment) should they be permitted to receive communion? Should some not be permitted? Assuming the mandates of the institutional Church are overly strict, should all baptized individuals be able to receive communion (my understanding of the Episcopalian practice); if not, who should not? Conservative Catholics believe that the existence of knotty questions like these illustrate the dangers of departing from the Magisterium. Liberal Catholic theologians and priests who must give pastoral advice have wrestled with these questions. If this site is to be truly diverse, it should discuss questions like these. It might expect too much of those who support the Magisterium to work within the world view of those Catholics who have rejected it in some part. I don’t know.

 

Given what progressive Catholics think of the institutional church (which they typically regard as sexist, homophobic, and sometimes corrupt), why should progressives Catholics stay in the Roman Catholic Church?

 

By the way, for a terrific book in which prominent writers, actors, Bishops, politicians, and businessmen, all raised in the Catholic Church, reflect on their faith lives (or lack of it), see Kerry Kennedy (daughter of Robert and Ethel Kennedy), Being Catholic Now. Many, if not most, of those interviewed (the interviews are turned into essays) are progressives. Some have stayed in the Church; some have left; all explain what led them to where they are on their faith journey. The Kerry Kennedy essay alone is worth the price of the book. Only rare human beings will not be moved by her essay.

Law Blog rankings

Now that we have a working site-meter count, we are finally eligible for Paul Caron's rankings.  The 2008 figures are here.  We are comfortably in the middle of a closely bunched group, ranked between 20 and 35.  (No one comes close to Instapundit, Hewitt, and Volokh.)  Thanks to all MOJ readers and bloggers!

"Catholic" Legal Theory

I appreciate Steve S.'s recent post, although I continue to believe that the discussion at Mirror of Justice is dramatically more rich and diverse than it is at any other group blog of which I am aware.  (One reason for this is that there are interesting differences -- regarding interests, approaches, etc. -- among those whom Steve regards as "conservative", and among those he is calling "progressive.")  But anyway . . .

Steve suggests that one way to classify, and distinguish among, the MOJ bloggers is to distinguish "between those who wholly subscribe to the Magisterium and those who do not."  I wonder, though -- I would welcome comments from those who characterize themselves as "liberal", politically -- whether it might also be that some among us, and in the broader Catholic community, who are more on the "left", politically, do so not because they reject, or dissent from, the Church's teaching authority, but because they understand the content and implications of the Church's authoritative teaching differently?  Maybe, given Steve's taxonomy, these folks are "conservative", notwithstanding their "liberal" politics?  What do others think? 

I'm also curious -- and, in asking this question, which I know is a delicate one, I want to be very clear, and not misunderstood -- what Steve and others think makes "legal theory" Catholic?  I cannot emphasize this enough:  I am not suggesting that those in the camp in which Steve places himself are not "real" or "good" Catholics, or that the legal theory of those in that camp could not be accurately characterized as "Catholic."  These are not the suggestions.  The question is posed sincerely:  What is it about a "legal theory" -- anyone's legal theory -- that would make it "Catholic"?  One answer is, "it is a legal theory that is consistent with, and proceeds from, foundations in the Church's authoritative teachings."  Another might be "it is a legal theory that aims to reflect the truths revealed in the Gospel, as those truths are understood by the particular Catholic, or community of Catholics, proposing the theory."  And I'm sure there are others.  Thoughts?

Is God a Liberal

Is God a liberal? Is it dangerous to ask a question like this? Is it foolish? It might be dangerous because one might impose one’s ideological views and call them divine. It might be foolish because we can not unravel the mystery of God. We can not purport to really know God.

 

Nonetheless, I think the question has to be asked. Christians are required to pursue justice in this world. They are required to assist in the divine plan to bring God’s kingdom to earth. In order to do this, they must ask what God expects of them. They must discern to the best of their ability God’s vision of justice.

 

Of course there is the risk that we will see what we want to see in God. Our political views should follow from our understanding of God, but, in turn, should assist in our understanding of God. What is written on our hearts is relevant to what we think of the divine. Of course we must have humility about whatever conclusions we are led to (what is written on our hearts is different from what is written on the hearts of others – this and other things lead many to give absolute adherence to the Magisterium). But people who believe in God must turn to God in determining all aspects of their lives including their political lives as citizens. Their conclusions may be provisional and contingent, but they are certainly an important part of a Christian life – all the more so for people who think, teach, and write about the law.

 

I recognize that God might want me to act as if she is a progressive and wants another member of this site to act as if she is a conservative. God may have a quite complicated plan. But I do not think it is foolish to ask if God is a liberal or a conservative or an unclassifiable. In living a life, the question has to be asked.

Parish Priest Recounts Tragedy of Gaza

From Zenit

From God's church in Gaza to the beloved saints in Palestine and the rest of
the world,

The grace of our Lord Jesus Christ and the love of God and the fellowship of
the Holy Spirit be with you all.

From the valley of tears, from blood-drenched Gaza, whose one and a half
million residents have been robbed of the joy they once had in their hearts,
I send you these words of faith and hope. As for love, that's a word that
even we Christians no longer dare utter, not even to ourselves. Today, the
priests of the church are raising the banner of hope. May God have mercy and
pity on us and leave a remnant in Gaza. May he not put out the light of
Christ, which was spread by the deacon Philip at the time of the early
church. May the compassion of Christ be what reawakens our love for God,
which is currently like a patient in a hospital's intensive care unit. As a
priest and a father, I bear the sad news of the death of a beloved girl who
was a tenth grader at the Holy Family School and the first Christian to die
in this war:

Christine Wadi' Al-Turk


Christine passed away on the morning of Saturday, January 2, 2009, due to
fear and cold. The windows of her house were open to protect the children
from being hit by flying glass fragments, and as missiles passed over her
house and her neighbors fell victim to Israeli attacks, her entire body
would shake with fear. When she could not longer bear it, she cried on her
Creator's shoulder and asked Him for a home and shelter with no crying,
shouting, or wailing but joy and happiness.

My brothers and sisters in Christ Jesus, what you see and hear on your
television screens is not the complete painful truth about what our people
in Gaza are going through. Their suffering is so widespread over our land
that no television or radio could report the whole truth about it. The
brutal siege on Gaza is a storm that escalates by the hour; it is not only a
war crime but a crime against humanity. Today, the suffering people of Gaza
are appealing to the conscience of every human being with goodwill, but it
will soon be our just God who decides the case.

The children of Gaza have been sleeping with their families in the hallways
of their homes (if they have them) or in bathrooms, for protection. They
tremble with fear at every sound, every movement, and every violent F-16
attack. While it is true that so far the F-16 jets have for the most part
targeted the headquarters of the government and Hamas, they are located in
residential areas no more than six meters away from people's homes, the
minimum distance required by construction law. That's why people's houses
are severely affected by the violence, and it leads to the death of many
children. Our children are suffering from trauma, anxiety, undernourishment,
malnutrition, poverty, and lack of heating.

The situation in hospitals is unspeakably deplorable. Our hospitals were not
properly equipped before the war, and now there are thousands of injured and
ill patients streaming in, to the point that operations are being done in
the hospital hallways, and many patients are being sent to Egypt via the
Rafah Border Crossing. Some of them never return because they die on the
way. The conditions in the hospitals are horrifying, heartbreaking, and
hysteria-inducing.

I would like to tell you a short story about something that happened in a
hospital to the Abdul-Latif family. One of the children disappeared during
the first attack, and his parents spent the first two days of the war
looking for him but did not find him. On the third day, as the family was
walking around a hospital, they found some people from the Jarada family
gathered around a disfigured and injured boy whose leg had been cut off. His
face was distorted not because of the F-16 attacks he had suffered but
because of the glass that had fallen onto his face when part of the hospital
was attacked. The Adul-Latifs approached the Jaradas to console them. When
they reached the injured boy, Mr. Abdul-Latif realized that it was his son
and not the Jaradas'. The families argued with each other over the issue and
waited for the boy to wake up and tell them who he was so that he could be
taken by the Abdul-Latifs.

I will keep my letter brief. I lift our suffering up to God just as I have
presented it to you. Our people in Gaza are being treated like animals in a
zoo; they don't get enough to eat, and they cry but nobody wipes their tears
away. Instead of water, electricity, and food, there is fear and terror and
restriction. Yesterday, the baker refused to give me bread, because he did
not want to let me eat something made from flour not suitable for human
consumption -- which he had begun using when he ran out of good flour -- so
as not to insult my priesthood. I vowed not to eat any bread for the
remainder of the war.

We want you to pray to God fervently and continually and to mention the
suffering in Gaza before God in every mass or service that you hold. I send
short letters with Scripture to the Christian community here to bring hope
to their hearts. We have all agreed to say the following prayer every hour
on the hour: "O God of peace, shower us with peace. O God of peace, bring
peace to our land. Have mercy on your people, O Lord, and do not be angry
with us forever." I ask you to stand up now and say the same prayer. Your
prayers with us will stir the world, showing it that any type of love that
is not extended to your brothers and sisters in Gaza is not the love of
Christ and His church, which does not let religious and social obstacles or
even wars stand in its way. When your love is extended to us here in Gaza,
it makes us feel that we are an indispensable part of Christ's one universal
church. The Moslems among us are our brothers and sisters. We share with
them their joys and their sufferings. We are one people, the people of
Palestine.

Despite all that is going on, our people in Gaza reject war as a way to
achieve peace and insist that the road to peace is peace itself. We in Gaza
are patient and have decided that we have no choice other than bondage or
death for our country. We want to live so we can praise God in Palestine and
to witness for Christ -- we want to live for Palestine, not to die for her
-- but if we must die, then we will die honorably and bravely.

Let us all pray together for the true peace that Christ gives. May wolves
and lambs one day live together, and bulls and cubs graze together, and
children be able to put their hands in the mouths of snakes without being
harmed.

And may the peace of Christ, "into which you were also called in one body,"
be with you all and protect you. Amen.

Your brother,

Father Manuel Musallam
Holy Family Priest
Gaza
January 3rd

HT;  Charles Miller

Conservatives and Progressives on this Site

Catholics are divided on many issues, but the great divide in my view is between those who wholly subscribe to the Magisterium and those who do not. I think of the former as conservatives (even though opposition to the death penalty is a liberal position) and the latter as progressives. I do not much care about the labels (one could distinguish between Magisterial Catholics and Dissenting Catholics, for example). The most conservative of Catholics will interpret the Magisterium (wrongly in my view) to permit the death penalty and modern instruments of war that are virtually certain to kill innocent civilians. Conservative Catholics tend to privilege the abortion issue in ways that would cause them to vote against Democrats.
Progressives, or dissenting Catholics, depart from the Magisterium (many regard the moral teachings of the Church as not infallibly taught and reject the claims of strong deference that the Vatican has claimed for non-infallible teachings of the Church). Progressives disagree with many of the sexual teachings of the institutional Church including teachings about gays. They reject the ban on women priests and the requirement of celibacy. They usually think that abortion is wrong, but disagree whether it is always wrong or wrong in many but not all circumstances. They have a variety of views whether abortion should be outlawed and, if so, in what circumstances. They do not privilege the abortion issue over other life issues in determining who to vote for. Progressives tend to be far more critical of the institutional Church than conservatives.
It is possible to not fit neatly into either of these categories.  But the first group tends to congregate around First Things; the latter around Commonweal. Neither group is remotely homogeneous.
Michael S says that 9-11 of the bloggers in the last three months on this site voted for Obama or would have but for his views on abortion.  One could vote for Obama and still be a conservative (see Kmiec), but the privileging of the abortion is a conservative position as I am using the term. Moreover, the issue I raised is not the diversity of the bloggers, but the predominance of posts by conservatives. On this site, it turns out that we progressives are a relatively quiet bunch.
Whatever the terminology, and wholly apart from the election, one of the recurring debates on this site is whether the institutional Church is right about various issues. The bloggers on this site include conservatives, progressives and those who cannot be classified. But the overwhelming majority of posts come from those who uniformly follow the Magisterium (or who interpret the Magisterium to permit the death penalty and certain instruments of war).
The problem with fewer progressive posts is not that the conservatives “win” by force of numbers (little is affected in the world by what we say here, and winners and losers are not declared) or that conservatives have an "advantage"; the problem is that we lose the richness and the diversity of the discussion that would be gained by a greater progressive presence, not in the list of bloggers, but in a posting presence. I do not criticize those conservative, progressive, or unclassifiable who do not post in substantial numbers. I do not blog much, have blogged even less in many months, do not plan to blog more, and could conceivably blog much less. I am not complaining about the number of conservative posts (as I have said it is a strength). My point is that so long as progressives are relatively quiet here, the depth and the diversity of the discussion would be enhanced by adding more progressives to the site. 

Another big (hopeful?) DC event

Tomorrow is the anniversary of the Supreme Court's tragically bad decision in Roe v. Wade.  Once again, tens of thousands of people -- mostly young people -- will march peacefully, providing a powerful witness to the sanctity of life.  And, once again, the press will pretty much ignore the event and misrepresent its tone and demographics.  (Here's the March for Life link.  If you are in or near Washington D.C. -- for the inauguration, perhaps -- please consider participating.) 

Greg has invited MOJ bloggers to share their hopes regarding ways that Pres. Obama might move the nation's policy's in a direction more in keeping with the Church's social and other teachings.  I am going to hope that the President will make serious efforts to rescue his party's education policies from teachers-union and anti-religious-school captivity, and to craft an approach that is more consistent with the Church's clear teachings in this area.  

Meanwhile, I read that, among the President's very first actions, during this week of the Roe anniversary, will be to undo the Bush Administration's ban on sending federal dollars to groups that promote and perform abortion abroad.