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, December 30, 2009

A thought for the season

By Michael Perry


Bertolt Brecht, A Bed for the Night

I hear that in New York
At the corner of 26th Street and Broadway
A man stands every evening during the winter months
And gets beds for the homeless there
By appealing to passers-by.

It won't change the world
It won't improve relations among men
It will not shorten the age of exploitation
But a few men have a bed for the night
For a night the wind is kept from them
The snow meant for them falls on the roadway.

Don't put the book down on reading this, man,

A few people have a bed for the night
For a night the wind is kept from them
The snow meant for them falls on the roadway
But it won't change the world
It won't improve relations among men
It will not shorten the age of exploitation.


Mother Teresa

"I never look at the masses as my responsibility; I look at the individual.  I can only love one person at a time--just one, one, one.  So you begin.  I began--I picked up one person.  Maybe if I hadn't picked up that one person, I wouldn't have picked up forty-two thousand....  The same thing goes for you, the same thing in your family, the same thing in your church, your community.  Just begin--one, one, one."

There you go again, Robby!

By Michael Perry

I have made it clear what I was saying in my Christmas Eve post, and it was not what you imagine me to have been saying:  "equivalent to racists".  You seem, after several posts, invested in your mistaken "equivalent to racists" construal of my post.  But there is no tension between the wording of the post--which is there for all to see--and what I have said I was saying in the post.

Now, consider your tone:  you open your most recent post by referring to--indeed, by sneering at--my "game" and my "tactic".  This is consistent with your intemperate accusations yesterday not merely that I am wrong on the merits, but, worse, much worse, that I am insincere, hypocritical, keeping up "the pretence", and engaged in "smearing" others.  (Have I missed anything?)  Your tone and your insults speak for themselves.  This to-and-fro between you and me has gotten not only tired but, in a word, ugly.  I worry that if it continues I might eventually respond in kind--which I would regret.  It's past time, I think, to take a deep breath, and move on.

Yep!

By Robert George

Michael:

So now your game is to depict me as "angry"---indeed angry to the point of perhaps being "venomous."  Nice try, but I'm afraid that tactic won't work either.  The reason is simple:  Your Christmas Eve post is there in black and white for everyone to see.  Readers can just go back and look at what you said.  Why is it that your fellow citizens who do not share your liberal views about sexual morality do not see the light?  Well, it's because their socialization and psychology saddle them with a deep emotional aversion to forms of sexuality that are "unfamiliar" to them.  Unlike you, they lack "open, truly open minds."

That's sweet, Michael.  Real sweet.

I don't think the people you've smeared will take much solace (nor do I) in your willingness to exempt me and my "mentors" from the charge of being like racists---or (as you twice put it in your most recent post) like racists "in some hideous sense."

Just to make sure I've got this right, by the way, in explaining why people who do not share your liberal views about sex and marriage think as they do, you are appealing to the authority of Martha Nussbaum?

On conscripting Cathleen Kaveny into our dispute, I simply took her at her word.  She said "since Michael apparently conscripted me into this discussion . . . ."  If you say that you didn't contact her and she felt "conscripted" simply because you referred to her in a blog posting, I'm happy to accept that.  It's an odd usage of the word "conscripted," but I don't see that this is much of an issue.

Now for your three points:

I hang around with a lot of liberals.  They don't mind being called liberals or having their views referred to as "liberal" views, just as I don't mind them referring to my views as "conservative."  "Liberal" is not, in my opinion, an epithet or a "slap."  (In fact, I've argued that contemporary American conservatives are, when they are at their best, "old-fashioned liberals.")  That some people who hold conservative views on most issues break with conservatism to embrace the liberal posistion on certain others is hardly news.  I'm such a person myself.  Most conservatives support the death penalty.  I oppose it.  (By the way, I know liberals who break with most of their fellow liberals by favoring the death penalty.)  That there are some conservatives (the exceptionally gifted Jon Rauch, for one) who break with most conservatives on some questions of sexual morality is an unremarkable fact.  I do not "overlook" it.  I've taken note of it in various places, even debating Jon on the question of whether there can be any ground of moral principle for opposing polyamory (which Jon opposes) if one reconceives marriage in such a way as to elminate the requirement of sexual complementarity.  Anyway, I don't object to my critics (or my supporters, for that matter) referring to my views on sex and marriage as "conservative."  Most people I know who disagree with me on sexual morality don't object to their views being referred to as "liberal."

On your second point, I would say that what what we need above all, from both sides, is careful, rigorous, principled argumentation about sexual morality and marriage.  I'd need to know precisely what you mean by "the yield of modern and contemporary experience" in order to say whether, and, if so how, I would see it as relevant to the discussion.  If you mean what Todd Salzman and Michael Lawler mean in their 2006 Theological Studies article, then I reject it for the reasons Pat Lee and I set forth in our 2008 Theological Studies article responding to Salzman and Lawler.  As to whether we should "reevaluate traditional attitudes toward, and judgments about, the morality of homosexual sexual conduct," I'm all for reevaluating anything that reasonable people of goodwill, be they secular or religious, think needs reevaluating.  There are utilitarians and others today who think we need to reevaluate, in view of changing circumstances, our belief and the Church's teaching about the inherent wrongfulness of torture.  Fine, let's reevaluate.  But let's not prejudge what the outcome of the reevaluation will be.  It might leave our beliefs in place, even strengthened.  I've listened to arguments advanced by very smart and capable people who think I should change my mind about sexual morality.  I've listened to arguments advanced by very smart and capable people who think I should change my mind about torture (and abortion, and non-combatant immunity in wars, and the dead donor rule for organ transplantation, and other contested issues).  But so far at least I remain unpersuaded.  I'm happy for the debate on all these issues to continue, though.

There is a generational shift in moral convictions about lots of things.  Sexual morality (including promiscuity ("hooking up"), "open" relationships, etc., and not just the morality of homosexual conduct) is one.  Lying is another.  Cheating on exams is another.  Sociologists are hard at work on trying to identify and understand the determinants of these shifts.  I expect they will discover that they are complicated. 

Tuesday, December 29, 2009

Not!

By Michael Perry

Robby began a post some weeks back--a post in the to-and-fro with Chip Lupu--with a comment about how things were getting "curiouser and curiouser".  Well, let me begin this post with the comment that at Robby's end, things seem to be getting angrier and angrier:

"I'm afraid the diversionary tactics won't work, Michael.  Nor will repeating yourself.  Or shifting the discussion to the opinions of Cathleen Kaveny on Germain Grisez's thought.  Your Christmas eve post was a smear against people who do not share your views about sexual morality.  You attempted to tar them as the equivalent of racists and then, in classic passive-aggressive fashion, you claimed to 'understand' how difficult it is for them to escape the 'socialization' and 'psychology' that saddle them with views that reflect nothing other than 'aversions' to the 'unfamiliar.'  I called you on the smear, and now you depict yourself as the victim.  It won't work. . . . [Michael's and my] dispute is about whether his Christmas eve post was a smear against honorable people who deviate from the liberal line on sexual morality.  I say it was, and that is why I called him on it.  It's time---past time---people refused to tolerate this sort of conduct."

That's sweet, Robby.  Real sweet.

Despite Robby's confident interpretation of what I was saying in my Christmas Eve post, the relevant point in the post was not that people who, like Robby and his mentors, believe that same-sex sexual conduct (and masturbation, and contraception, and non-marital sexual conduct) is always and everywhere necessarily and gravely immoral "are the equivalent of racists"--or even that they are like racists in some hideous sense.  I suppose that given what Robby and his allies have had to deal with in their campaign to persuade us that same-sex sexual conduct is always and everywhere necessarily and gravely immoral, it is not surprising that Robby would be only too ready to assimilate *my* point to *that* point--and then fulminate against it and me.  What, then, was my point?  That there is this similarity between many who opposed interracial sexual conduct and many who oppose same-sex sexual conduct:  Their visceral--yes, visceral--opposition is rooted in a deep-seated emotional aversion to--a disgust at--the conduct, which some of them will then naturally try to rationally vindicate by constructing arguments that those who do not share their emotional aversion regard as, to put it charitably, farfetched.  My point--that point--is a far cry from claiming that people who, like Robby and his mentors, believe that same-sex sexual conduct is always and everywhere necessarily and gravely immoral "are the equivalent of racists".  In his passion to paint me as smearing others in making the point I did--a point that Martha Nussbaum elaborates and defends in her two most recent books, which I've cited today--Robby is smearing me.  If Robby continues in the same vein, now that I have told him what I meant, I will have to conclude that he is not only angry but venomous.

What Cathy meant by my "conscripting" her was simply that I, without notifying her,  referred to her work, and to Jean Porter's, in one of my posts.  I took it that what Robby meant, by contrast, was that I had solicited Cathy's comments.  If Robby says that he did not mean the latter, so be it.

Now, I repeat some of what I said earlier, not because I think Robby will respond to it.  He's made it pretty clear he's in no mood to do that.  I repeat it because Robby keeps saying the same things (e.g., "the liberal line on sexual morality") and I want to emphasize what Robby has not responded to today:

1.  “Liberal ideology”?  “Liberal people”?  Robby overlooks, in his rhetorical slap at liberals, that many of those who agree with me on the issue at hand—and disagree with Robby—are not at all liberals:  Jonathan Rauch, Dale Carpenter, Dick Cheney, etc.  Government’s role in regulating the economy is a right/left, liberal/conservative issue.  But the issue at hand is not such an issue—and should not be so characterized, however useful in may be to do so in polemical statements and fundraising letters.

2.  Am I not correct that moral theology should be informed by the yield of modern and contemporary experience—and that it loses credibility if it is not so informed?  Am I not correct that today, there is good reason to reevaluate traditional attitudes toward, and judgments about, the morality of homosexual sexual conduct?  Even good reason to think differently about the morality of homosexual sexual conduct than our parents and grandparents did when they were young?

3.  Isn’t it clear that in the world’s most established liberal democracies, there is ongoing a generational shift in attitudes toward, and judgments about, the morality of homosexual sexual conduct?  What are the principal determinants of this generational shift?  Are we to believe that shifts in socialization and psychology, due to a contemporary experience of homosexuality that is rather different from that of our parents and grandparents, do not play a significant role.

Was it a smear . . . or not? That is the question.

By Robert George

I'm afraid the diversionary tactics won't work, Michael.  Nor will repeating yourself.  Or shifting the discussion to the opinions of Cathleen Kaveny on Germain Grisez's thought.  Your Christmas eve post was a smear against people who do not share your views about sexual morality.  You attempted to tar them as the equivalent of racists and then, in classic passive-aggressive fashion, you claimed to "understand" how difficult it is for them to escape the "socialization" and "psychology" that saddle them with views that reflect nothing other than "aversions" to the "unfamiliar."  I called you on the smear, and now you depict yourself as the victim.  It won't work.

As for whether you conscripted Cathleen Kaveny into the dispute, I'm not the person who initiated that claim -- though you falsely call it "Robby's false claim."  Professor Kaveny herself did.  Don't you recall?  Here are her words: "Since Michael apparently conscripted me into this discussion . . . . "  The two of you can sort the matter out between yourselves.  I'm a bystander on this one.

Off line, Michael Scaperlanda asked why I described Professor Kaveny's comments on Professor Grisez's thought as "ex cathedra."  It is a legitimate question, so let me say exactly what I meant in using that phrase.  I meant that Professor Kaveny's comments were general and conclusory, and the worse for it.  They are difficult to engage because (despite the clarity of Grisez's thinking and writing) they do not identify with clarity and precision the propositions that Grisez allegedly holds and defends and Professor Kaveny objects to; nor do they provide textual evidence that these are in fact his propositions; nor do they give arguments for rejecting as false or unwarranted propositions that he has been shown to hold and defend.  So we get, to cite one of many examples, the claim that "What counts as acting against a good [for Grisez] seems to be defined arbitrarily.  Why does contraception act against the good of marriage but smoking a cigarette not act against the good of life?"  Well, anyone who has read Grisez's work or Finnis's will know that they give careful, reasoned accounts of what it means to act against a basic human good, and they go to great lengths (especially in their treatment of the nature of intention in the theory of action and agency) to show that it is possible to distinguish deliberately acting against a good from performing an act that damages or impedes a good as a side-effect of an otherwise justified choice.  Professor Kaveny does not engage these arguments at all.  She simply declares (without argument, evidence, or any engagement with anything Grisez or Finnis actually says) that "what counts as acting against at good [for Grisez] seems arbitrary."  This will not do.

It is this kind of thing that caused me to characterize Professor Kaveny's pronouncements as "ex cathedra."  What she needs to do if she wants to be taken seriously as a critic of Grisez and Finnis or commentator on their work is to wrestle with what Grisez says about human action and agency as bearing upon basic human goods in, for example, The Way of the Lord Jesus, Vol. 1, Christian Moral Principles, especially pages 215-222, 231-236, 239-243, 244-245, 256-259, 268-269, and in chapter 6 (pp.141-171), which is devoted to the critique of proportionalism and other consequentialist theories of moral reflection and judgment; and in his famous article "Against Consequentialism," American Journal of Jurisprudence, 23 (1978), pp. 49-62; and what Finnis says in, for example, "Object and Intention in Moral Judgments According to St. Thomas Aquinas," in J. Fallon and J. McEvoy (eds.) Finalite and intentionalite: Doctrine Thomiste et Perspectives Moderne (Bibliotheque Philosophique de Louvain, No, 35, 1992), pp. 127-148; and "Intention and Side-effects," in R. G. Frey and Christopher W. Morris (eds.) Liability and Responsibility (Cambridge University Press, 1991), pp. 32-64; and what Grisez and Finnis say together (with Joseph M. Boyle, Jr.) in their book Nuclear Deterrence, Morality and Realism, especially at pages 77-86 and 275-319.  When Professor Kaveny moves from speaking in general and conclusory terms (which are safe but ultimately unhelpful) to offering a serious critique that identifies with specificity propositions Grisez and Finnis assert, provides textual evidence demonstrating the accuracy of her interpretations of what they are saying, and gives reasons for believing that their propositions embody or rest on factual errors or illicit inferences or are in some other way faulty, then we will really have something to talk about.  (Criticism of this sort is what I myself tried to provide---and what my dissertation supervisor, John Finnis, insisted on---in my own doctoral dissertation, which was a critique of aspects of Grisez's work in political philosophy.)  What will not do---for Professor Kaveny or anyone else---is to criticize philosophical writings---anyone's---in general and conclusory ("ex cathedra") terms that enable one to sound authoritative but which, in truth, fail to engage those writings in any serious way.  (Incidentally, anyone interested in why Grisez and Finnis and others believe that contraception is contrary to the good of marriage, can have a look at Finnis, "The Good of Marriage and the Morality of Sexual Relations: Some Philosophical and Historical Observations," American Journal of Jurisprudence, 42 (1998), pp. 97-134, available here: http://www.princeton.edu/~anscombe/articles/finnismarriage.pdf.  Note, by the way the careful and rigorous criticisms Finnis makes of John Noonan's claims about Aquinas on sexual morality.  If Professor Kaveny wishes to attempt a defense of Judge Noonan on this matter, I would very much welcome an opportunity to have an exchange with her about it here on MoJ or in any forum she prefers.  This would be a great opportunity for us to get down to specifics, where people are required to take responsibility for what they are claiming by backing it up with evidence.  It would also enable our readers to judge whether Professor Finnis or Judge Noonan is the more accurate and reliable interpreter of Aquinas. On the question of smoking cigarettes, Grisez has analyzed the question showing with characteristic precision how the choice to smoke bears immorally on the basic human goods of life and health. See The Way of the Lord Jesus, Vol. 3, Difficult Moral Questions, pp, 600-603.)

The dispute between Michael P. and myself, however, is not about the pros and cons of Germain Grisez's thought or Cathleen Kaveny's opinions about it.  (The subject came up at all only because Michael's Christmas eve post included an assertion that Kaveny and Jean Porter were more faithful exponents of the tradition running from Aristotle through Aquinas than Grisez and Finnis.  My advice to anyone who wonders about the truth of the matter is to ignore Michael's opinion and my own and simply read some work by Kaveny and Porter and read some work by Grisez and Finnis.)  Our dispute is about whether his Christmas eve post was a smear against honorable people who deviate from the liberal line on sexual morality.  I say it was, and that is why I called him on it.  It's time---past time---people refused to tolerate this sort of conduct.

Oh yes, one more thing.  Michael's latest move is to bring Russ Hittinger into this.  Russ is indeed a noted critic of Grisez and Finnis.  His criticisms are set forth in his book which Michael mentioned:  A Critique of the New Natural Law Theory.  I have offered a critique of Russ's critique in chapter two of my book In Defense of Natural Law (Oxford University Press, 1999).  Whether they are right or wrong, Russ offers specific criticisms of the sort that can be engaged productively.  Our exchanges led to a deep friendship.  In fact, I invited Russ to teach with me at Princeton, which he did, and arranged for him to be a Visiting Professor to teach my courses when I was on leave.  I would be happy to have Russ weigh in with an opinion on the comparative scholarly achievements of John Finnis and Cathleen Kaveny or Germain Grisez and Jean Porter.  Russ is also a forceful defender of Catholic teaching on sexual morality and marriage.  We might ask him what exactly it was about his socialization that caused him to have an aversion to unfamiliar forms of sexuality. 

Rick and Health Care

By Steve Shiffrin

It would be helpful if Rick would explain (1) why the Senate’s version of the health bill is not abortion neutral enough (after reading the second link I supplied); (2)(a) how he expects thirty million men, women, and children to be covered without the health bill, (b) how he expects millions more near poor to pay less without the health bill (see the first supplied link), and (c) how he expects regulation of health insurance abuses to be effected without the health care bill. 

Rick only asserts that it is reasonable to think the poor would not be helped by the bill (if it passed), that it does not promote the common good, and that the Senate bill is not abortion neutral. He does not provide an argument for these propositions. And, if he has a convincing argument for the third, he has yet to provide an argument as to why the principle of double effect does not apply.

Perhaps he has provided such arguments in other posts. If so, I would be grateful if he just pointed me in their direction.

A (late) reply to Steve S.'s "Health Care and Helping the Poor"

By Rick Garnett

A few days ago, Steve S. urged "progressives" to support the health-care bill (I'm assuming we're talking here about the Senate's version), and directed a similar exhortation to "those who would privilege squeaky-clean abortion neutrality over the needs of the poor[.]" 

I'm not sure what is meant by "privileg[ing] squeaky-clean abortion neutrality over the needs of the poor."  Putting aside entirely reasonable doubts one might have about whether the Senate's bill (or the House's) really serves, all things considered, the common good, and the "needs of the poor" in particular, it strikes me, with all due respect to Steve, as unfair to wave off the abortion-related concerns regarding the current healthcare-funding proposals as reflecting merely an excessive attachment to "squeaky-clean abortion neutrality." 

It is, many of us believe, a monstrous injustice that laws not only exclude the most vulnerable among us from the law's protections -- and, to make matters worse, justify this exclusion with reference to human rights.  This monstrous injustice would be made even worse, and further entrenched, some of us believe, by a healthcare-funding bill that subsidized abortion and embraced (not only implicitly) the fiction that abortion is healthcare.  Even if one thought (and a reasonable, informed person certainly need not think) that the bill under consideration actually would, all things considered, help the poor, one would not be merely stubbornly fastidious for thinking that the abortion-related "costs" were just too high.  The concern that many of us have is not with preserving a "squeaky clean neutrality", in terms of money-flow and cooperation-with-evil; it's with avoiding (what can only be regarded as) a clarion-clear declaration by the United States that abortion is "health care" to which everyone has a right and which the citizenry may justly be taxed to provide.

Another Christmas poem

By Rick Garnett

It's not too late . . . there are twelve days, remember?

Nativity (1992)
by R.S. Thomas

Christmas Eve! Five
hundred poets waited, pen
poised above paper,
for the poem to arrive,
bells ringing. It was because
the chimney was too small,
because they had ceased
to believe, the poem had passed them
by on its way out
into oblivion, leaving
the doorstep bare.
 
(HT:  David Buysse)

Israel's Chief Rabbis on abortion

By Rick Garnett

A friend and MOJ reader sends along this story, about a recent letter sent by Israel's two top rabbis in which they "denounc[ed] abortion" and "said that abortion kills thousands of Israeli babies a year and delays the coming of the Messiah and they promised to do more to promote pro-life and pregnancy help efforts."

A further response by Cathy to Robby

By Michael Perry

[Hey, I didn't conscript this post either--but I sure am grateful for it!  Cathy says:]

Robby, Robby, ouch!  I try to outline, in objective fashion, just why Grisez isn't a big influence in current theological or philosophical circles, and you just resort to more  bluster and insult.

1.  Where, exactly, is my summary of the criticisms about Grisez wrong?  Would you like more citations?  For anyone who wants to begin reading about the critique of the new natural law theory from a conservative Catholic perspective, you might want to start with Russel Hittinger's book, http://search.barnesandnoble.com/A-Critique-of-the-New-Natural-Law-Theory/Russell-Hittinger/e/9780268007751  My own view is that too much is packed into the theory as premises.  You can make assertions in a baritone voice (self-evident goods, etc.), but that doesn't make them arguments--they're still assertions.

2.  I'm happy to have people to read my work--some of it actually reflects a vision of intention that accords with Grisez's and Finnis's ("Inferring Intention from Foresight," Law Quarterly Review January 2004), and is engaged with Grisez's work (What is Legalism?  Engelhardt and Grisez on the Misuse of Law in Christian Ethics," The Thomist, March 2009  I've learned a great deal from both of these men. I admire Finnis greatly.  I've also learned a great deal from John Noonan, and Alasdair MacIntyre--and instead of reading me, I'd say read Noonan and MacIntyre and compare THEM to Grisez and Finnis.  My basic theoretical framework is indebted to Noonan and MacIntyre--because I think they provide a richer account of human flourishing and a more comprehensive historical account of the development of Christian doctrine than Grisez does.

3.  The main area in which we disagree is what a Thomistic theory of law would look like on abortion.  Here's my take  M. Cathleen Kaveny, "Toward a Thomistic Perspective on Abortion and the Law in Contemporary America, The Thomist, March 1991.  http://www.nd.edu/~ndlaw/faculty/kaveny/kaveny-thomist-abortion.pdf  It tries to take seriously the Thomistic notion of law as a teacher of virtue--not an approach with which Finnis or Grisez would be sympathetic, since they don't see Thomas primarily as a virtue theorist.

4.  Oh, and I guess we disagree because I sometimes have voted for Democratic presidential candidates, foreseeing but not intending reinforcing abortion rights.  In particular, I couldn't vote for Bush a second time or for McCain--although I have in the past voted for the Republican presidential candidate on the issue of abortion. We all know after reading the NYT article that you're quite a Republican.

5.  Which brings me to my Rambo Catholics line.  Not a new quote --but one from this very blog in  2004, thanks to Google, whose memory  is eternal.  I wrote into the NYT Magazine and corrected the context. Hopefully it will come out soon.  I was deeply angered--and wounded--by your criticism of the intelligence, good faith, and commitment to Catholicism of pro-life Catholics who held their nose and voted for Kerr.  I thought it was way out line. Still do.

You can't compare people to supporters of slavery and the Holocaust, as you regularly do, and expect them to not get angry.   But then, that seems to be many people's experience with the pro-life movement.  The names that officials in the pro-life movement called Casey, or Nelson, or Brownback in recent months were just shocking to me--but alas, not surprising.  Maybe the pro-life movement can afford to lose everyone it deems to be a "traitor" to the cause.  I happen to think there's a lot of people around who are pro-life, but opposed to the tactics and vision and language of the pro-life movement.  My sense is that the movement thinks it can afford to lose us all.  Maybe it can.

At any rate, have a happy New Year, Robby, and MOJ--I think I'd better go back to grading, and to my own blog home, on Commonweal.  My next column, for those who are interested, is on a relative of Rick's --Thomas Garnett, the saint and martyr--and the practice of "mental reservation" around the Irish sex abuse case.

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