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, November 17, 2010

Another thought on Saletan's advice

As Rob mentioned (below), Slate's Will Saletan wrote up some "advice" for those of us who are pro-life, prompted by his attendance at the recent Princeton conference (in which Lisa, Rob, and I participated . . . though, according to some, only in a lightweight, naive capacity). 

Saletan's first piece of advice to the pro-life side was to "reduce abortion through voluntary means."  It is not clear, though, whether Saletan means to suggest that there is something wrong with also trying to change the currently misshaped state of constitutional doctrine so that reasonable regulations of abortion are (as they should be, under a correct interpretation of the Constitution) permitted.  After all, no one thinks that overturning Roe, Doe, and Casey end abortion, so it strikes me as long past the time to stop acting as though it is an insight to point out that it wouldn't.  Even though it wouldn't, it would be a good thing for our political community, I think -- and for our Constitution -- if the anti-democratic judicial overreach that was Roe were corrected.

(Here, by the way, is Saletan's advice for the pro-choice side.)

UPDATE:     Here is a long piece by Frances Kissling, one of the conference's organizers, on the event.

Tuesday, November 16, 2010

Will Saletan's "advice" to pro-lifers

One needn't share an advocate's views to admire his savviness and effectiveness in advocating them.  One of the shrewdest advocates I know is Will Saletan of Slate.  Folks who are familiar with Will's writings know that he is a dedicated believer in "sexual freedom" and practices, such as legal abortion, that serve and support it.  Rob has linked us to a post by Will offering some advice to pro-lifers. Is it good advice? I don't think so. It is advice that, if followed, would serve very well Will's own values, goals, and commitments.  That, I suppose, is why he is giving it.  No surprise there.

Saletan on "Open Hearts" conference

At Slate, William Saletan offers his reaction to the Princeton abortion conference, including a list of five lessons for pro-lifers.  (His lessons for pro-choicers will be posted tomorrow.)

Torture, waterboarding, and the culture: A response to Rob

A few thoughts in response to Rob's recent post, regarding President Bush's candid acknowledgment that he authorized the waterboarding of several terrorists-detainees:  First, and simply to restate what any regular reader of MOJ already knows, I agree with Rob that torture is immoral, and that it is not rendered immoral by virtue of its success at saving lives, or by virtue of its being authorized by positive law.  Nor is it rendered moral by the fact that many to condemn it are, to put it mildly, inconsistent in their non-consequentialism.

That said, I was struck by this bit, in Dahlia Lithwick's piece reacting to President Bush's "damn right" quote (about which Rob commented): 

Those of us who have been hollering about America's descent into torture for the past nine years didn't do so because we like terrorists or secretly hope for more terror attacks. We did it because if a nation is unable to decry something as always and deeply wrong, it has tacitly accepted it as sometimes and often right. Or, as President Bush now puts it, damn right. . . .

All this was done in the name of moving us forward, turning down the temperature, painting over the rot that had overtaken the rule of law. . . .  If people around the world didn't understand what we were doing then, they surely do now. And if Americans didn't accept what we were doing then, evidently they do now. Doing nothing about torture is, at this point, pretty much the same as voting for it. We are all water-boarders now.

Now, my view is that Dahlia Lithwick is frustratingly prone to partisan analysis that does not reflect her intelligence and so does not really illuminate.  Here, though, it is different.  Here, her reaction to the "damn right" quote does point to something true (though, perhaps, not her intended target):  We are, in a sense, "all water-boarders now." 

By this I don't only mean (though, I suppose, I do in part mean) that those whose vote in 2008 was, in theory, influenced by their professed antipathy toward and disagreements with President Bush should not imagine that things are all that different now (or that the Democrats in Congress were not, at the time, happy to go along with activities and decisions they later professed to oppose), or that the current administration, if pressed, would refuse on principle to do what the last one did.  I mean that very few people actually believe, embrace, and work to operationalize consistently those truths that make it the case that it is wrong to torture even a malevolent person, even if that treatment is legally authorized, even if one is charged with the care of the lives and security of innocent citizens, and even if the treatment workes (i.e., reveals accurate and important information). 

If it was wrong to waterboard the detainees about whom President Bush was speaking (and, again, I believe that it was, though I hope I am appropriately sensitive to the fact that a President's choices are more difficult than a Professor's), it must be for non-consequentialist, non-reductionist reasons.  If human beings are reducible entirely to electrified, skin-encased sacks of organic goo, then it was not "wrong" -- because nothing is really "wrong" -- to waterboard the detainees in question.  And if one's objection to the waterboarding reflects only one's (likely not-fully-informed) sense that it was not really necessary (or if that objection sits comfortably alongside one's enthusiastic embrace of a fundamental right to procure a late-term abortion) . . . well, as Churchill supposedly said, we are just haggling about the price, aren't we?

Monday, November 15, 2010

Waldron on Religious Argument in Politics

Thanks to Paul Horwitz for flagging this new paper from Jeremy Waldron, Two-Way Translation: The Ethics of Engaging with Religious Contributions in Public Deliberations.  The arguments may not be new, but it's nice to see someone like Waldron lend his substantial intellectual heft to the cause.  Here's the abstract:

Using as an exemplar, the 2007 "Evangelical Declaration against Torture," this paper examines the role of religious argument in public life. The Declaration was drawn up by David Gushee, University Professor at Mercer University, and others. It argues for an absolute ban on the use of torture deploying unashamedly Christian rhetoric, some of it quite powerful and challenging. For example, it says: " [T]he Holy Spirit participates in human pathos with groans and sighs too deep for words. The cries of the tortured are in a very real sense, … the cries of the Spirit." The present paper considers whether there is any affront to the duties of political civility in arguing in these terms. There is a line of argument, associated with John Rawls's book, "Political Liberalism," suggesting that citizens should refrain from discussing issues of public policy in religious or deep-philosophical terms that are not accessible to other citizens. The present paper challenges the conception of inaccessibility on which this Rawlsian position is based. It argues, with Jurgen Habermas, that all sides in a modern pluralist society have a right to state their views as firmly and as deeply as they can, and all sides have the duty to engage with others, and to strain as well as they can to grasp others' meanings. It is not enough to simply announce that one can not understand religious reasons, especially if no good faith effort has been made, using the ample resources available in our culture, to try. Of course, many peoeple will not be convinced by the reasons that are offered in religious discourse; but to argue for their rejection - which is always what may happen in respectable political deliberation - is not to say that the presentation of those reasons was offensive or inappropriate

Social justice at Marquette

Over the weekend I participated in some fascinating conversations at Marquette as part of a conference on social justice organized by Christopher Wolfe.  With folks like Jean Bethke Elshtain, Nicholas Wolterstorff, and John Finnis in the lineup, I (wisely) did more listening than talking.  I found Wolterstorff's exploration of social justice to be especially interesting.  Building on his previous work on justice, he reminded us that justice is not equality in the assignment of benefits and burdens (as Aristotle would have it), but the rendering to each what he is due (i.e., the goods to which he has a right).  Social justice requires us to focus on laws and social practices that create patterns by which members of a community are deprived of their rights, beyond particular instances of injustice.  (For what it's worth, John Finnis agreed with this definition of social justice.)  Wolterstorff also noted that opposition to "social justice" arises from a variety of concerns: 1) Concern about separating patterns of injustice from the intentions of those contributing to the patterns.  As he pointed out, justice does not track with culpability.  We can wrong someone without having blameworthy intentions.  2) Concern that the state is the prime mover on social justice issues.  He emphasized that recognizing social injustice does not carry implications as to remedy.  3) The deepest source of resistance, in Wolterstorff's view, is that our acknowledgment of responsibility for social injustice requires that we stop the practice at issue, and that's hard to do for those who benefit from the status quo.

My own contribution was less ambitious, as I was invited to defend faith-based initiatives against criticism that such programs are inconsistent with the demands of justice, properly understood.  I hope to post the whole thing here at some point, but for now, here's a short excerpt that captures my thesis:

Religious belief can provide a foundation for relationships of personal care and concern animated by love.  The state does not appear to have the moral resources to build into its provision of welfare services the aspirational commitments needed for a love relationship, but the state should care that the needy are being loved in this way.

Sunday, November 14, 2010

Judicial "Greatness" and Judicial Duty

In light of Rick's thoughtful post a few days ago about Justice Scalia's views on the judicial role, I was interested to read this piece by Noah Feldman over at Slate.  The legal commentary at Slate is always good, clean fun for me, principally because it is a source of great comfort to have a place to go where I know that I am certain to have strong disagreements with some recently posted legal interest item.  Last week was no exception; the pleasures of reaction are not to be missed.

In the piece, Professor Feldman voices the hope that Justices Sotomayor and Kagan will "elbow each other to greatness[.]"  He notes that Justice Sotomayor recently dissented from the denial of cert. on a case that seemingly not a single judge to that point had taken seriously as a legal matter and he suggests that she was doing so in order to "hint[]" to Justice Kagan that "[i]f her new colleague opts for the center, [Sotomayor] will take on the role of conscience of the court."  "Once a new appointee has fulfilled every lawyer's ambition by making it onto the court," Feldman explains, "the next step is to become a great justice." 

The question is -- well, how to do that exactly.  How does one become a "great" judge?  Feldman says that "great" justices often get that way by defining themselves against, or in relationship to, other justices whom they view as rivals for personal influence among their fellows.  His central example is the relationship of Justices Frankfurter and Black with respect to the Gobitis case -- how Frankfurter had enough clout to "convince his liberal colleagues" to rule against the right to opt out of the mandatory flag salute, how Black changed his view in part because he "sensed the chance for leadership," and how Frankfurter was in turn "devastated at what he considered the abandonment of principle -- and the loss of his own influence."  The lesson, Feldman thinks, is that "strong rivalries and personalities make great justices," and he concludes with the hope that Sotomayor and Kagan will prod each other to produce "incandescent constitutional ideas or judicial opinions," so that they may become as "great" as Thurgood Marshall, Frankfurter, Black, Douglas, and Jackson.

That there aren't any conservative justices on Feldman's list of "greats" is of course unremarkable: I understand that the hunger of many law professors for a liberal lion on the Court has reached insatiably gargantuan proportions, and these sorts of pep rally pieces are to be expected in increasing supply.  Each to his taste, of course.  But what's much more interesting is Feldman's open embrace of judicial pride -- perhaps even a kind of petty envy -- as the avenue by which "greatness" is achieved.

Continue reading

The Rights of Christians in the Middle East

A propos of John's very good post below, here is a little summary of a roundtable discussion that our Center for Law and Religion, under the guidance of my colleague and friend, Mark Movsesian, organized dealing with the subject of the persecution of Christians in the Middle East.  The plight of Christians in several nations, including Egypt and Iraq, was discussed.

Our roundtable preceded the most recent violence, but one of the things I was most struck by was the unusually large attendance at this event (relatively late on a Thursday evening): there were well over 150 people in attendance -- many of them interested members of the community.  My sense is that this is a comparatively understudied topic, and that there is great interest in it.

Friday, November 12, 2010

Catholic Legal Theory and the Middle East

This past Tuesday evening I had the great pleasure of taking part in a dinner celebrating the twentieth anniversary of the Arab American Bar Association of Illinois.  I am a founding member of this organization and currently serve as its vice-president.  The reason for this is that, notwithstanding my pale white skin, dull blue eyes, and Irish last name (inherited from my Belfast born father), I am, in fact, part Arab.  My maternal great-grandparents, Joseph George and Helena Mansour, immigrated to the U.S. from Bsharri, a Maronite village in the north of Lebanon, close to the cedar forests for which the country is so famous, and proudly so.

The Arab Bar Association is a wonderful group of men and women who trace their roots to countries throughout the Arab world, from the Levant, to the Gulf, to North Africa.  Like similar organizations, the bar provides its members with opportunities to engage in networking, continuing education, and judicial evaluation.  The constituency of our bar is about half Muslim and half Christian, and so, although the organization is not religious, it has a distinctively interreligious quality about it.  The legal profession and the practice of law serve as a common meeting place where we can come together as members of one community, even as we recognize and respect our differences.

One of the most uplifting things about the Arab Bar is that it serves as a counterpoint to the hateful caricature of Arabs present in our culture – a caricature that existed long before 9/11.  The bar provides a positive image of Arab Americans as members of a learned profession dedicated to public service and the rule of law.  Thus, we were honored to have Ray LaHood, longtime Congressman from Peoria and now Secretary of Transportation in the Obama Administration as our keynote speaker on Tuesday night.  The Arab Bar is also in dialogue and collaboration with other ethnic bar associations, and I was honored to have the president of the local Decalogue Society seated at my table.

Sadly, Christian communities throughout the Middle East have been under increasing pressure to abandon their homelands and relocate to the West for a number of years.  We witnessed an especially bloody example of this pressure recently with the massacre of over fifty people including two priests at a Syrian Catholic Church in Bagdad last week and the murder of more Iraqi Christians this week (see here and here).

The recent Special Synod of the Bishops of the Middle East produced a document that addresses the complex situation in which Catholics (Maronite, Melkite, Syrian, Chaldean, Coptic, Armenian, and Latin Rite) find themselves in that part of the world.  (The Synod’s preparatory document is here and its closing statement is here).  The closing document forthrightly demands the right to religious freedom for Christians and others in these predominantly Muslim countries.  It also calls for a just resolution of the Israeli-Palestinian conflict, a point that has aroused no small amount of criticism (see here, here, and here).

The views expressed by the bishops do not reflect, as some critics have suggested (here), a kind of naïve optimism for a utopian future in the region once a Palestinian state is established.  The bishops are well acquainted with the mortal threat posed by Islamic extremism in the Holy Land and other countries in the region.  They witness it everyday.  Instead, the document reflects the reasonable parameters of compromise necessary to achieve a just peace – the only kind of peace that will be lasting.  These are in keeping with what both John Paul II and Benedict XVI have said with respect to the conflict and how it should be resolved.

The people of Israel are our brothers and sisters, and when they are the victims of terrorism, whether from Katyusha rockets or suicide bombers, their blood cries out to heaven for justice.  The same is no less true when Arab blood is spilled by fellow Arabs (whether Muslim or Christian), or by Israelis.  This is not to suggest some kind of moral equivalence between acts of terrorism and acts of self-defense.  It is to suggest that not every Israeli action can be rightfully described as an act of self-defense.  To say as much is not to wallow in the gutter of anti-Semitism.  It is to say that the actions of every nation may be subject to scrutiny and criticism, and where appropriate, condemnation.  No one is above reproach. 

Israel is a member of the family of nations.  She has a right to exist in peace and security within internationally recognized borders, but she does not have the right to dictate what those borders should be in a unilateral fashion.

I am no apologist for Palestinian and other Arab violence against Israelis and Jews, but neither do I wish to indulge in the Israeli exceptionalism that typifies discussion of the Palestinian-Israeli dispute in the United States.

The Catholic bishops of the Middle East have provided a fresh starting place from which to begin the conversation—one that will be new to many Americans, one that is consistent with the principles of Catholic social teaching.  For those interested in the real world implications of this teaching, the document is well worth considering.

Chesterton on Juries

"Almost 80 years ago, G. K. Chesterton, the English essayist, observed the following about a jury: Our civilization has decided, and very justly decided, that determining the guilt or innocence of men is a thing too important to be trusted to trained men. It wishes for light on that awful matter, it asks men who know no more law than I know, but who can feel the things I felt in the jury box. When it wants a library catalogued, or the solar system discovered, or any trifle of that kind, it uses up its specialists. But when it wishes anything done which is really serious, it collects twelve of the ordinary men standing round. The same thing was done, if I remember right, by the Founder of Christianity.Gilbert K. Chesterton, Tremendous Trifles: The Twelve Men (New York, Dodd Mead and Company, 1922) at p. 86-87." United States v. Diggs, 52 M.J. 251, 256 (C.A.A.F. 2000)

HT:  Brandon Hale