From America, June 22, 2009:
Tuesday, June 16, 2009
Some News About Michael Perry
Monday, June 15, 2009
International Theological Commission on the Natural Law
Contributors and friends of the Mirror of Justice may recall that last December I posted a brief synopsis of the International Theological Commission’s (ITC) anticipated document on “The Search for Universal Ethics: A New Look at Natural Law.” [HERE ] The ITC recently issued the promised text; however, it is currently available only in Italian [HERE ] and French [HERE ].
I was speaking with a former member of the ITC the other day, and he was not sure that an English version would be in the works, but he hastened to add that a Spanish version is now in translation. That might suggest that the an English version will follow.
In the meantime, I hope that this simple overview might help those who consult this website be aware of the ITC’s important work that I believe has a bearing on the development of Catholic legal theory. The first point is the ITC’s recognition that natural law and its objective values provide an essential basis for universal ethics. The nexus between a universal understanding about ethical norms and the natural law cannot be stressed too much. Moreover, the ITC’s document mentions several times the dangers of the purely positive approach to law making and adjudication that emphasizes the subjective rather than the objective requirement for law which can lead to statism or worse. The essence and nature of the human person are crucial to the development the objective norms about which the text speaks.
While not mentioning the “mystery of life” passage of Casey v. Planned Parenthood, the ITC is nevertheless critical of the subjective approach that the leads to an exaggerated autonomy that dictates values which deem objective norms immaterial or irrelevant. The Casey approach that seems to magnify the importance of human dignity, in fact, undermines it because that which is due the person is subjectively rather than objectively determined. In short, the ITC acknowledges that while individuals are often different, there must be objective and universal norms knowable by the natural law that guarantee the existence and protection of one and all in their enjoyment of fundamental rights, or the suum quique—to each his or her due.
Another point emphasized by the ITC is that the law made by human society must rely on the “light of reason” to develop juridical principles that prefer the moral act over the immoral one. The reason here is not the “rationalistic” one but that based on the notion familiar with the Catholic intellectual tradition of “right reason.” For it is right reason that enables people from across the globe to understand better what is common to each human being regardless of culture, religion, ethnicity, etc. Importantly, the ITC concludes this text by noting that the Christian understanding of natural law must, sooner or later, take account of the teachings of Jesus Christ.
RJA sj
Catholicity of Sotomayor Comment
So far, the most controversial revelation regarding the nomination of Judge Sonia Sotomayor is her comment in a 2001 speech at Berkeley which included the following statement:
"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life."
Although the statement may raise legitimate political and jurisprudential questions related to her confirmation, it could be construed as consistent with the Catholic principle of the preferential option for the poor. Both Sotomayor's statement and the preferential option imply that privilege can result in lacunae requiring a "view from below" in order to identify injustice. The preferential option as a principle of Catholic social thought has its origin in the work of liberation theologians such as Gustavo Gutierrez. In a 1980 sermon, Pope John Paul II articulated it as...
"a call to a special solidarity with the humble and the weak, those who are suffering and weeping, who are humiliated and left on the fringes of life and society, in order to help them to realize ever more fully their own dignity as human persons and children of God."
Redding on "the mausoleum of majoritarian marriage"
St. Louis law prof Jeffrey Redding has posted an essay titled Proposition 8 and the Future of American Same-Sex Marriage Activism. The essay underscores my concern that the exclusion of same-sex couples from the institution of marriage would eventually stop marginalizing same-sex couples and would end up marginalizing marriage itself. Redding looks to Canada, the U.K., and India as countries where dignity has been "invoked not to amalgamate minorities into a unitary, common family law system but, instead, to provide minorities with legal space in which to implement non-majoritarian visions of family, community, and the good life." Sounds reasonable, I suppose, but then we learn that it's not simply about creating additional space for alternative institutions; it's also about escaping the oppression of marriage. Redding asks "whether gay and lesbian political capital could be invested in dignity-enhancing efforts that have a goal other than prying open the mausoleum of majoritarian marriage." He also criticizes the Connecticut Supreme Court for citing a Catholic Conference amicus brief regarding marital values such as permanency, fidelity, and selflessness. (The court held that such values apply equally to committed same-sex couples.) Redding responds:
Here we have a secular court quoting a religious brief that is itself arguing an antiquated vision of marriage which holds heterosexuals hostage every day. My question: Is it in the best interests of gays and lesbians to get caught up in this mess?
This line of thought is not new to Redding, of course, but it is a helpful reminder of a viable and pressing threat to marriage, whether espoused by gays or straights, libertarians or progressives. It has become increasingly difficult to persuade Americans (especially young Americans) how the inclusion of committed same-sex couples within marriage threatens marriage. Reading helps identify the real danger to marriage culture, but the remedy, I would think, requires a more nuanced response than "say no to same-sex marriage."
Saturday, June 13, 2009
papers
I have recently posted at SSRN a new paper titled The Place of "Higher Law" in the Quotidian Practice of Law: Herein of Pratical Reason, Natural Law, Natural Rights, and Sex Toys. It can be viewed here. Though the paper itself is in final form, comments would be a welcome help to one of my next projects, which will pursue in greater depth several of the topics of the current paper. I would also welcome comments on another recent paper, Equality, Conscience, and the Liberty of the Church: Justifying the Controverisale per Controversialius. My hope is that Jimmy Page will make an appearance in one of my next papers.
Friday, June 12, 2009
Catholic Legal Thought: Live at the Dubliner!
The Catholic Legal Thought Conference rolled into Washington, D.C. this week, and our nation’s capitol will undoubtedly never be the same. The conference’s growing and rollicking cacophony of personalities, friendships, and booming ideas brings to mind a larger-than-life 1970s rock band, and given this week’s extended, late-night run at one of the best Irish pubs around, I think the rock band image might be the best vehicle for explaining what went on during this year’s installment. Just as the best 1970s albums were inspired by a single concept (e.g., “The Wall"), we centered our discussions on the work of Pope Benedict, specifically Deus Caritas Est and Spes Salvi.
Patrick Brennan, playing the part of Jimmy Page, can always jump-start the arena with a tour de force display of natural law theorizing. He noted the strange notion of American lawyers, for whom the law has a tenuous (at best) connection with “the good,” looking to the pope for jurisprudential guidance, since for the Church, the law is all about the good. He also noted the ambiguity in Benedict’s discussion of the natural law. Sometimes Benedict refers to the natural law as reflecting the order in nature or the order that can come to be in the human mind, and sometimes (but not always) he refers to its reflection of the order in the divine mind. This latter understanding is important, in Page's Brennan's view, in order to remind the human legislator that they operate under divine authority.
Greg Kalscheur, playing the part of Greg Allman as a technically proficient musician who brings an added dimension of soul to his performances, explored Benedict’s concept of “healthy secularity” and how it differs from “unhealthy secularism.” Part of healthy secularity entails making Christian insights perceptible and plausible to the citizenry in order to help form the good state, regardless of how those insights are ultimately labeled.
One session was devoted to the concept of hope. Amy Uelmen, the anti-Yoko Ono who is always working to keep the band together, addressed the relationship between eschatology and spirituality. John Breen, the Paul McCartney who wants the band to stay true to its musical heritage and not start venturing into disco, distinguished the theological virtue of hope from today’s materialist forms of hope, but noted that some non-theological forms of hope can facilitate a self-transcendence that can ultimately bring one closer to the theological. Ed Gaffney, the keyboardist whose powerful, moving, and nearly psychedelic keyboard solos transfix the audience, told stories of hope, God’s absence, and the law’s absence in a range of human dramas.
In my session, we talked about love and justice, working with Deus Caritas Est. CUA philosophy prof Brad Lewis, playing the part of the Edge (yes, U2 started in the 70s) with his understated yet hauntingly beautiful guitar work, asked several penetrating questions: What significance should we draw from the difference between John Paul II’s “civilization of love” and Benedict’s “church as a community of love?” Does Deus Caritas Est seem to be primarily addressed to bishops, and how should that affect our reading of it? Why is Benedict repeatedly raising and criticizing Marxism, when very few people are still taking Marxism seriously? Is it accurate to say that charity happens within the political order, but not through the political order, as justice does?
I then stepped up in the role of both Captain and Tenille during their “Muskrat Love” days. (The audience knows it’s wrong, but it is still somehow endearing.) I asked why the state should care about the practice of Christian charity. First I suggested that we need to specify what sort of love we are talking about, because if agape love is simply, as Anders Nygren suggests, a disinterested, unmotivated form of love that creates value, rather than recognizes value, Christian love looks a lot like the state’s “love.” If, instead, agape love is active, interested, motivated, and personal, as Pieper suggests, then Christians are not just passive conduits for love; they are subjects who love as acts of will, and their love is aspirational – directed toward human flourishing, not just the facilitation of autonomy. Christian charities should embody dynamic relationships of love with aspirations of substance, not just provide goods and services to facilitate an open-ended and substance-less autonomy. The latter might look like justice, but it’s not love. Because the state does not have the moral resources needed to build in these substantive and aspirational commitments, they also lack the resources to rule what those commitments should (or shouldn’t) be, but they should care that the needy are being loved in this way.
In any event, it was a wonderful, enriching time. We didn’t trash any hotel rooms or scare small children. Next year, the band rolls into Chicago. See you there.
(For a more refined reflection on the conference, read Susan's post.)
Torture, Morality, and Law
I haven't read this paper yet, but it looks to be of interest to MOJ readers--and I want to post it before I hit the road for a few days.
Torture, Necessity and Supreme Emergency: Law and Morality at the End of Law
Zachary R. Calo
Valparaiso University School of Law
Valparaiso University Law Review, Forthcoming
Abstract:
This paper employs Michael Walzer's concept of "Supreme Emergency" to
address the permissibility of torture under conditions of necessity. It
proposes moving beyond both utilitarian and deontological approaches to
legal authority in order to understood necessity as a moral category. A
full account of right action under conditions of necessity therefore
demands taking account of the distinct yet cooperative function
provided by legal and moral norms. A political official might therefore
possess moral but not legal warrant to act in contravention of binding
legal norms. Preserving the validity of law is essential to the economy
of social reconstitution in the aftermath of political tragedy.
[The paper can be downloaded here.]
The Wages of Hate
That's the title of on online piece by Judith Warner in today's NYT. Some passages:
Like Scott Roeder, the man charged in the shooting of the Wichita, Kan., doctor George Tiller nearly two weeks ago, James von Brunn, the white supremacist charged with killing a guard in an attempted shooting rampage at the Holocaust museum in Washington on Wednesday, doesn’t have any current, overt links to extremist groups. Yet his violent hatred — of Jews, blacks, the government — echoes throughout the universe of right-wing extremists, who just a few years ago hailed and revered him as a “White Racialist Treasure.”
And though he’s an outlier — disturbed, deranged, disavowed now by
many who share his core views — his actions really can’t be viewed in
isolation. As was the case with Tiller’s murder, which followed months
of escalating harassment and intimidation at abortion clinics, von
Brunn’s attack on the Holocaust museum has to be viewed as an extreme
manifestation of a moment when racist, anti-Semitic agitation is
rapidly percolating. White supremacist groups are vastly expanding. And
right-wing TV rhetoric, thoughtless in its cruelty and ratings-hungry
demagoguery, is helping feed the paranoia and rage that for some
Americans now bubbles just beneath the surface....
I wrote last week about the rising threats to and vandalism at abortion clinics that followed the election of our first pro-choice president in eight years. A similar increase in intimidating activism has been observed over the past seven months among hate groups — and simply hateful individuals. In November, a predominantly black church under construction in Springfield, Mass. was burned to the ground by three men who bragged of doing so in protest of the election. A cross was burned outside the home of a family of Obama supporters in Hardwick, N.J.
As was the case with increasing clinic vandalism and verbally violent protest, it was only a matter of time before this racially motivated destruction and intimidation turned to physical violence. And there’s one additional, highly disturbing parallel between von Brunn’s intended white supremacist shooting rampage and Scott Roeder’s “pro-life” killing of George Tiller: In both cases, at least some of the core beliefs of extremists were echoed, albeit in more socially acceptable language, by right wing news commentators.
Bill O’Reilly had routinely talked in recent years about “Tiller the baby killer.”
Other right-wing talk show hosts like Glenn Beck, Lou Dobbs and Rush
Limbaugh have similarly tapped into — in somewhat coded form — some of
the key concerns of extremist hate groups: that the economy has been
destroyed by government-proffered “bad” loans to illegal immigrants, for example, or that FEMA may or may not — Beck equivocated for an awfully long time
— be running “concentration camps” for U.S. citizens, or that the Obama
administration is declaring war on decent Americans by labeling them as
“extremists.” ..
You can’t accuse Beck or Limbaugh of inciting violence. But they almost certainly do stoke the flames. They may give people who are just about to go over the edge — the sort of “guy that could not take it anymore” as one poster on the white supremacist forum Stormfront.org, described von Brunn — some sort of validation for their rage.
“The pot in America is boiling,” Beck said this week, in the wake of the Holocaust museum killing. “And this is just yet another warning to all Americans of things to come.”
That creepy schadenfreude just about says it all.
And then there's this morning's column, titled "The Big Hate", by Nobel laureate (economics) Paul Krugman. Some passages:
Today, as in the early years of the Clinton administration but to an even greater extent, right-wing extremism is being systematically fed by the conservative media and political establishment.
Now, for the most part, the likes of Fox News and the R.N.C. haven’t directly incited violence, despite Bill O’Reilly’s declarations that “some” called Dr. Tiller “Tiller the Baby Killer,” that he had “blood on his hands,” and that he was a “guy operating a death mill.” But they have gone out of their way to provide a platform for conspiracy theories and apocalyptic rhetoric, just as they did the last time a Democrat held the White House.
And at this point, whatever dividing line there was between mainstream conservatism and the black-helicopter crowd seems to have been virtually erased....
In the Bush years, The Washington Times became an important media player because it was widely regarded as the Bush administration’s house organ. Earlier this week, the newspaper saw fit to run an opinion piece declaring that President Obama “not only identifies with Muslims, but actually may still be one himself,” and that in any case he has “aligned himself” with the radical Muslim Brotherhood.
And then there’s Rush Limbaugh. His rants today aren’t very different from his rants in 1993. But he occupies a different position in the scheme of things. Remember, during the Bush years Mr. Limbaugh became very much a political insider. Indeed, according to a recent Gallup survey, 10 percent of Republicans now consider him the “main person who speaks for the Republican Party today,” putting him in a three-way tie with Dick Cheney and Newt Gingrich. So when Mr. Limbaugh peddles conspiracy theories — suggesting, for example, that fears over swine flu were being hyped “to get people to respond to government orders” — that’s a case of the conservative media establishment joining hands with the lunatic fringe...
What will the consequences be? Nobody knows, of course, although the analysts at Homeland Security fretted that things may turn out even worse than in the 1990s — that thanks, in part, to the election of an African-American president, “the threat posed by lone wolves and small terrorist cells is more pronounced than in past years.”
And that’s a threat to take seriously. Yes, the worst terrorist attack in our history was perpetrated by a foreign conspiracy. But the second worst, the Oklahoma City bombing, was perpetrated by an all-American lunatic. Politicians and media organizations wind up such people at their, and our, peril.
Thursday, June 11, 2009
Breen on "Neutrality in Liberal Legal Theory and Catholic Social Thought"
I imagine someone has linked to John Breen's recent paper, "Neutrality in Liberal Legal Theory and Catholic Social Thought" but, even if someone has, the paper is worth (at least) two mentions. If you haven't read it yet, drop the remote, and get to it.
Wednesday, June 10, 2009
Call for Papers: "The Summons of Freedom"
The Notre Dame Center for Ethics and Culture is putting together its annual Fall Conference. This year's theme is "The Summons of Freedom: Virtue, Sacrifice, and the Common Good." Here (Download Center CFP) is the call for papers. And here is a bit taken from the call:
Thus I am delighted to write to you today in order, first of all, to announce the theme for the Notre Dame Center for Ethics and Culture’s 10th annual fall conference: The Summons of Freedom: Virtue, Sacrifice, and the Common Good. The conference will take place November 12-14, 2009, here at the University of Notre Dame.
Final confirmation of the relevance of this conference theme came when we reflected once again upon the remarks made on the South Lawn of the White House by Pope Benedict XVI during his apostolic visit to the United States last April. In those remarks the Holy Father said:
Freedom is not only a gift, but also a summons to personal responsibility. Americans know this from experience—almost every town in this country has its monuments honoring those who sacrificed their lives in defense of freedom, both at home and abroad. The preservation of freedom calls for the cultivation of virtue, self-discipline, sacrifice for the common good, and a sense of responsibility towards the less fortunate. It also demands the courage to engage in civic life and to bring one’s deepest beliefs and values to reasoned public debate.
Here the Holy Father makes clear certain connections that are of utmost importance not only to us Americans, but also to anyone trying to sort through the enormous moral and political complexities of our dizzyingly globalized world. Pope Benedict underscores that freedom is both gift and summons, a call toward a particular “cultivation” or cultural formation in the virtues, virtues that always demand sacrifice—and sometimes even the total sacrifice of one’s life—for the sake of common goods higher than the merely private goods of the self. Earlier in his remarks the Holy Father had emphasized that “the great intellectual and moral resolve” that, in America, ended slavery and brought into being the civil rights movement, took religious belief as a “constant inspiration and driving force,” thus reminding us of Christianity’s role as the true preserver and defender of human freedom. In saying this, the pope invoked his revered predecessor, John Paul II, who tirelessly preached that “in a world without truth, freedom loses its foundation.”
In taking up the theme, The Summons of Freedom: Virtue, Sacrifice, and the Common Good, our 10th annual fall conference will reflect upon political and legal questions having to do with the very nature of the political common good, the particular conflicts that arise in trying to achieve it, and the precarious situation of freedom in the democracies of advanced modernity. But we will also welcome inquiries into social structures other than political ones—such as the arts—in which the virtues may flourish, or which are designed in such a way so as to choke off the development of genuine virtue in favor of ersatz versions. Particular focus will be placed on the analogous forms of virtuous self-discipline and sacrifice required to sustain the human network of common goods.