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.

Monday, October 19, 2009

Recommended Reading [Updated]

[Here is the link to Brian Leiter's paper, for those of you interested in pursuing this interesting dispute. ]

Can There Be a Religion of Reasons?
A Response to Leiter's Circular Conception of Religious Belief

Jeffrey M. Lipshaw
Suffolk University Law School

September 27, 2009

Suffolk University Law School Research Paper Series, 09-46

Abstract:     
This is a comment on a definition of religion recently proffered by Brian Leiter in support of different conclusions we ought to draw with respect to religion. His analysis is ultimately circular: the problem with religion is that it is not science. Exposing the circularity requires identifying the trick, which is that he employs an appeal to common sense to distinguish religion and science. Nevertheless, the very belief in common sense is the same as the religion Leiter attacks: it is categorical and insulated from further reasons. My argument in response has three major themes. (1) The argument based on receptiveness to reasons and evidence itself arbitrarily picks and chooses reasons and evidence. (2) It is possible to posit a religion whose categorical demands on action and requirements of foundational bedrock are minimal. (3) Religion uses reason (in the sense of concepts apart from evidence) to grapple with the source of our bedrock beliefs. It differs from other such grappling only in degree and not kind of thought; once we accept the role of concept (or reason) in such work, religious or secular, we necessarily must accord bedrock status (or categoricity) to at least one concept. Finally, I suggest that adoption of Leiter's definition has a troubling implication as to our respect for personhood.

Keywords: religion, common sense, tolerance, respect, Quine, reasons, evidence

[Downloadable here.]

Martin Marty on the Common Good

Sightings 10/19/09

 

The Common Good

-- Martin E. Marty

 

Sometimes we do our sightings and findings of religion-in-public-life themes among throwaway or incidental lines, writings or sayings which suddenly hit us with unexpected force.  A seemingly banal one struck me, and provides the base for all charters which deal with health care in the United States.  The sentence is so obvious it could have just lain there, inert and overlookable, but its reminder can strike consciences and should spur action.  It leaped out in the first paragraph of Daniel Callahan’s “America’s Blind Spot: Health Care and the Common Good” in the October 9th Commonweal, as follows:

           

“We all get sick and depend on others to care for us…”  The reminder inspired self-examination and questions, such as:  “Have you or anyone you ever heard of forever escaped sickness, or can you picture escaping life without ever becoming ill?”  Question two:  “If your sickness was, is, or will be the least bit serious and weakening, can you picture always getting by without ‘depending on others?’  A family member or friend helps with minor ailments but, when these get to be a little more serious, or very serious, indeed, on whom will you depend?”  Callahan knows that most Americans but by no means all – the count is in the tens of millions – have or can get access to care through insurance or existing (e.g., Medicaid) U. S. Government funding.  What about the rest?

 

“Care” is the big word in Callahan’s headline.  It and its synonyms are unmistakable in the language of the prophets, while care for the other is the most basic theme in the Gospel sayings of Jesus of Nazareth.  Callahan connects such care with the concept and reality of the “common good,” outlined by Aristotle and, he properly notes, developed in Catholic theology and practice.  He misfires with the first half of this sentence:  “Except for Catholics and a few others, however, the common good as a moral value has little purchase in American culture and politics.”  Ouch.  I support, for example, the lively “Protestants for the Common Good,” and can think of many agencies beyond Catholicism, Protestantism, Christianity, and Judaism which propound and seek to follow “common good” concerns.  In fact, to be crabby for a moment, I wish a few more Catholics (and media covering them) knew this teaching and ranked it highly, no longer leaving “anti-abortion” and various homosexual rights issues in splendid media isolation.

           

Callahan knows that beyond the various familial, churchly, and charitable agencies, the only backstop when one has to depend is, somehow, governmentally connected.  Yet whisper the word “government” and you will see “the common good” interest forgotten or denied – and followed by bragging-rights language from the well-off who assert that newly-defined individualism must reign supreme and alone.  The poor, unemployed, disabled:  Should not the churches care, and cannot they be depended upon?  We can document that most of them try, and do many primary and supplemental acts of care within their means.  Last Sunday our parish intercessions named thirty people needing care, many of them “depending” on others.  Our whole parish budget for the year was $1 million, which would not go very far very long.  We need help.  It is not in place for Sightings to back a specific policy of public, public-and-private, or other options.  But the first word to be said after noticing illness, being dependent, needing, and “the common good” is one which will help remove the “individual as god” rhetoric and claim.  Callahan spells much of this out, since the details are important, but his simple line quoted above launches it all and should provide foundations for what follows.  Take care.

 

[Read Daniel Callahan’s piece in Commonweal here.]


[Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.]

Great Day Walking with Friends on the Camino

Our relaxing day in Leon ended with night pray with the Benedictine Sisters who were hosting us in their albergue.  Around 9:30 one nun came over to the albergue to invite us to pray.  She even told a group of young pilgrims sitting in the courtyard singing Beatles songs that it was time for pray.  And, they followed.  We were given compline books in our own language with the Spanish translation on the opposite page and instructed that the singing and chanting would go back and forth with the nuns doing part and then the pilgrims doing part.  It was very beautiful.

After a good night sleep (for me at least) it was back on the trail - spending an hour or so winding through Leon until we were back in the countryside.  Walking with good friends was a delight and the whole day (a fairly short to medium 24Km went very fast.  As we were sitting on the road side eating our lunch, the young German who had been playing guitar the night before walked past us playing his guitar and singing Dylan.  We wrongly assumed that he spoke English because his Dylan English was so good.

FYI, I offered one of the walking days last week for the Cause of Stanley Rother and priest from the OKC archdiocese who was martyred in Central America in 1981.  I offered today for all those suffering financial worries, especially in this time of crisis.

Some additional thoughts on conscience…

 

 

Friends of the Mirror of Justice will recall that I have participated in past discussions on the matter of conscience. Today I do not plan on getting into a prolonged discussion; however, I would like to offer a few observations on some of the recent thread that has developed over the past several days.

 

The first point I would like to make is that both at home (via the United States Conference of Catholic Bishops) and abroad (the Holy See), Catholic thought on the matter of conscience must distinguish between “conscience,” which can be prone to subjective determination, and the “well-formed conscience.” This distinction is essential to our task. While we may debate the meaning or definition of the term the “well-formed conscience,” we ought not to proceed too far on the matter of conscience without first acknowledging that this distinction is vital to Catholic social thought, the Catholic intellectual tradition, and, therefore, the development of Catholic legal theory.

 

The second point I shall make involves several of the illustrations used by some of my MOJ friends to supplement their arguments and positions. I would like to first of all consider the case of the executioner and his or her “right” to conscientious objection. I am more than a bit surprised by this illustration. The post of executioner has been around for a long time. An executioner has one mission in life: to take the life of another person. Usually, but not always, this taking of life exists within the context of a state-sanctioned execution. In all manifestations of the duties, however, the executioner is called upon to terminate the life of another human being. That is what the job is all about, and anyone who takes the post ought to understand this. I think the candidates for the post are aware of this principal function, and to make the argument that an executioner has some kind of right and or argument against doing what he or she was hired to do is problematic. If a person becomes a firefighter and later claims that he or she conscientiously objects to fighting fires, I would think a sensible person would say that this firefighter’s argument is specious. Similarly, a candidate who wishes to be a dog catcher but who thinks dogs should remain free to roam as they please ought to rethink his or her vocational plan. I would of course make an exception to this last conclusion if the post of dogcatcher were advertised as “canine relations officer.”

 

I now come to the second case of the justice of the peace who refuses to marry opposite sex couples, each member of who is from a different racial background. It seems clear from this example used over the past several days that the justice of the peace is now conscientiously objecting to having to perform the marriage that he or she is obliged to perform. This JP would now be contesting forty-three years of judicial precedent, i.e., Loving v. Virginia. If the person is seeking to become a JP, he or she would be like the firefighter, the dog catcher, or the executioner whom I have just treated. The JP would be expected to marry interracial opposite sex couples. JPs marry opposite sex couples regardless of race. Dog catchers catch dogs. Executioners lawfully execute other people under the law of the state. If the JP took his or her office prior to Loving being decided, I would think it fair to ask this person why he or she did not object to performing an interracial marriage of a man and a woman during these past forty-three years.

 

But mandating a JP to now marry same sex couples is substantively different. JPs have long married a couple consisting of a man and a woman. Mandating pharmacists to sell “emergency contraception” is different. Pharmacists are in the profession of compounding and selling medications that sustain life, not destroy it. Mandating doctors to perform abortion is different. Doctors are called upon to save lives, not take them. The “mandates” requiring these actions that contravene the purpose of the office are new or are emerging. Moreover, they are catching good, moral people by surprise. In addition, these budding “mandates” are akin to the questionable and totalitarian mandates of almost eighty years ago that caught by surprise many good people in

Germany

who found that they could no longer do what they once could do as a matter of legal right that understood and respected the well-formed conscience.

 

RJA sj

 

The Life of Faith and the Moral Life

On Sunday, I had the honor of receiving Mount St. Mary's University's Founder's Medal in a ceremony held at the end of a beautiful Mass in the University's Chapel at which one of my godsons, Msgr. Stuart Swetland, who is a professor of moral theology at the Mount, was the main celebrant.  I took the occasion to offer some reflections on the relationship of the life of faith to the moral life, and to develop a line of thought about about the nature of personal vocation.   These reflections began as a speech I delivered a year or so ago to students at Union University, a wonderful Baptist institution in Tennessee.  I'll provide the first few paragraphs below.  If anyone would like the full text, I'll be happy to provide it by email.

 

Faith is the way we realize a profoundly important aspect of our well-being and fulfillment as human beings, the good of living in friendship and harmony with God.  But faith plays another role as well:  it guides and structures our pursuit of all of the other aspects of human well-being and fulfillment that are the objects of our rational choosing.  In the life of faith, our friendship with God pertains not only to what we ordinarily regard as religious questions and the religious dimensions of our lives; it pertains to the whole of life, including those aspects of our lives that we ordinarily regard as secular.

 

Now this is by no means to deny that there are secular as well as religious dimensions of life.  Even the life of a hermit monk or a contemplative nun will have secular dimensions.  Nor am I saying or suggesting that friendship with God is the only true human good, or that it renders the others insignificant or reduces them to the status of mere means to friendship with God considered as the ultimate goal of all upright human choosing.  In fact, the human good is variegated:  there are many distinct and fundamentally different aspects of human well-being and fulfillment, many basic human goods.  If one considers, for example, the goods of friendship, knowledge, and religion, each is an aspect of human well-being and, as such, provides a reason for acting whose intelligibility as a reason does not depend\on any further or deeper reason (or possible subrational motivating factor) to which it is subordinate or serves as a mere means.  But the benefit of having or being a friend is different in kind from the benefit of gaining knowledge or enhancing one’s critical intellectual faculties, or the benefit of bringing oneself more fully into harmony with God.  These are distinct and irreducible human goods.  By predicating “goodness” of them, we do not suggest that they share a common substantive content that is merely expressed or manifested in different ways.  Rather, we predicate goodness of them precisely because each, in its way, fulfills persons in a certain distinct dimension of their lives, and therefore each is capable of motivating us to act by appealing to what Aristotle called our “practical intellect”—that is, our rational grasp of what is, in fact, humanly fulfilling.  Each provides a more-than-merely-instrumental reason for acting.

 

What then distinguishes morally upright from immoral choosing, given the variegated nature of the human good and the incommensurability of its most basic forms?  Well, morality, it seems to me, is a matter of rectitude in willing.  Its criterion, I believe, is the conformity of our choices—our acts of will—with the integral directiveness of the various basic forms of human good.  Norms of morality, whether the more general sort, such as the Golden Rule of doing unto others as you would have them do unto you, or the Pauline Principle that one must never do what is in itself evil, even for the sake of good consequences, or the more specific norms that forbid committing murder, rape, and theft, are entailments (or specifications) of the most fundamental moral principle, namely that one should choose in ways that are fully compatible with a will towards integral human fulfillment.  But if this story of the foundations of moral judgment and the criterion, or, when specified, criteria, of morally upright choosing is correct, then many of our choices are not between morally right and morally wrong options, but between or among morally legitimate options.  The application of moral norms will, of course, sometimes exclude certain options (murder, rape, and other intrinsically evil acts are always excluded; and there are many acts that are excluded at least in some circumstances), but it will often leave two or more options morally available.

 

While plainly there are life plans and life styles and forms of conduct that are ruled out by the application of moral norms, the variegated nature of the human good makes it the case that there are many mutually exclusive but morally upright possible plans of life and ways of living.  Norms of morality certainly require us to lead lives of integrity and coherence, lives that make use, to the extent possible, of the talents we enjoy and that accomplish, again to the extent possible, things we believe in and care about.  But very different lives can fully embody integrity and coherence. 

Reply to Rob on Conscience

Rob, if you have another look at what I said about those justices of the peace, you'll see that I actually didn't state a position on the question that you and Steve Shiffren have taken opposing sides on. I was responding to what Michael Perry may (though I'm not sure) have been suggesting or asking in his very brief comment on the article he posted about the racist Louisiana justice of the peace:

"Interracial marriage.  Same-sex marriage.  Hmm."

My point was simply that someone who believes, as I do, that a racist justice of the peace ought not to be able to stay in his job if he refuses to perform marriages for interracial couples, is not logically committing himself to the proposition that officials who refuse as a matter of conscience to perform marriages for same-sex partners ought not to be able to keep their jobs.  That point is consistent with your being right, just as it is consistent with Steve's being right, on the issue that divides the two of you.  It is also consistent with your both being wrong on the issue, at least insofar as the reasoning is concerned.  As much as I would like to seize an opportunity to agree with Steve, this is not my chance.  I don't find the argument for his unconstitutional condition claim persuasive.  But I'm not persuaded by your argument either (though I am certainly open to hearing more about it).

In any event, the debate is, in my opinion, academic (in the pejorative sense).  If the struggle over marriage eventually results in the abolition of the conjugal conception of marriage in our law, then sooner or later (probably sooner) any significant conscience protections for dissenters from the revisionist understanding of marriage will be eliminated.  Those who cling to belief that marriage is, in truth, a one-flesh union of sexually complementary spouses, and that same-sex marriages, etc. are therefore not marriages and should not be recognized or treated as such, will themselves be treated in the way that we treat racists and other bigots.  They will be subject to legal limitations and disabilities similar to those that we impose on people who act on racist beliefs in various domains of public and quasi-public life.  I suspect that in many jurisdictions, proponents of redefining marriage will offer some fairly robust sounding conscience and religious liberty protections in order to get the legislation they are supporting enacted.  (That happened in Vermont.)  Those protections will come under attack, however, and will erode rather quickly once the new definition of marriage is firmly in place.

To my mind, then, the real debate is about whether to abolish the conjugal conception of marriage.  The conscience and religious liberty issues are, I believe, for the most part a side show.  The fate of conscience and religious liberty protections for believers in conjugal marriage is tied to the fate of marriage itself.  If marriage is redefined, they will not find themselves free to live by their beliefs without incurring legal disabilities.  I hope that people will not naively accept the assurances they are too often given that there will be "no consequences for them."  Chai Feldblum famously said (contemplating what she candidly ackowledges are the vast areas in which the agenda she passionately supports comes into conflict with the consciences and religious freedom of Catholics, Evangelicals, Orthodox Jews, and others) that she "[has] a hard time coming up with any case in which religious liberty should win."  And Professor (and now EEOC Commissioner nominee) Feldblum is regarded by some on her own side as a "moderate" because she thinks that it is important to show a "respectful awareness" of religious liberty claims, even when overriding them.  Of course, Professor Feldblum and I are poles apart on the relevant normative questions.  But if we rephrase her claim to make it a descriptive one, I don't disagree with it.  If marriage is redefined, I have a hard time coming up with any case in which I think that conscience and religious liberty claims will win.  Place not thy trust in promises of conscience protection.

Sunday, October 18, 2009

Do yourself a favor: read this ...

Fellow Inmates Ease Pain of Dying in Jail.

On being "awake" ...

"To be awake is to be alive.  I have never yet met a man who was quite awake.  How could I have looked him in the face?"  --Henry David Thoreau

Well, Thoreau never met Jesus.  Or Buddha.  Among others.

"O friend, awake, and sleep no more!  The night is over and gone, would you lose your day also?  You have slept for un-numbered ages; this morning will you not awake?"  --Rabindranath Tagore

Honoring Michael Scaperlanda's sacrifice

I feel your pain, Michael.  To honor your sacrifice, I am posting a link to Bono's op-ed in today's NYT, titled "Rebranding America".  Enjoy!

Sacrifice on the Camino

Today is my one big day of sacrifice on the Camino.  U2 is in Norman and my friend Teresa is using my ticket to go with my wife and two of my children.  On the other hand it has been a great day in Leon with my friends Bill and Mark who have joined me from Austin for the last two weeks of the Camino.  We also met a young man from Alabama who is also starting his Camino in Leon after spending two years in Niger with the Peace Corps.  Have a great Sunday