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.

Friday, December 3, 2010

Waldron on the Image of God and Human Rights

By Rob Vischer

Jeremy Waldron has been pitching it right in the MoJ wheelhouse recently.  He just posted a new paper, The Image of God: Rights, Reason, and Order.  The abstract:

The idea that humans are created in the image of God is often cited as a foundation for human rights theory. In this paper, this use of imago dei is surveyed, and while the paper is basically favorable to this foundation, it draws attention to some difficulties (both theological and practical) that using imago dei as a foundation for human rights may involve. Also it explores the suggestion that the image of God idea may be more apt as a foundation for some rights rather than others. Its use in relation to political rights is specifically explored. The moral of the discussion is that foundations do make a difference. We should not expect that, if we simply nail this idea onto the underside of a body of human rights theory as a foundation, everything in the theory will remain as it is.

And from the paper:

The foundational work that imago Dei does for dignity is, in my opinion,indispensable for generating the sort of strong moral constraint associated with rights – and for overriding the temptation to demonize or bestialize “the worst of the worst.” This temptation is so natural that it can only be answered by something that goes beyond our attitudes, even beyond “our” morality, something commanded from the depths of the pre-political and pre-social foundation of the being of those we are tempted to treat in this way Imago Dei presents the respect that humans as such are entitled to as something grounded, not in what we happen to care about or in what we happen to have committed ourselves to, but in facts about what humans are actually like, or, more accurately, what they have been made by the Creator to be like – like unto Himself and by virtue of that likeness sacred and inviolable. We are not just clever animals, and the evil-doers among us are not just good animals gone bad: our dignity is associated with a specifically high rank in creation accorded to us by our creator and refl ecting our likeness to the creator. Our status even as wrong-doers is to be understood in relation to this.

He also points out some difficulties with the Imago Dei as a basis for rights, both from theological and political vantage points.  Well worth reading.

"Defending Constantine"

By Rick Garnett

After reading this, at First Things, I ordered my own copy of Peter Leithart's Defending Constantine.  The book is reviewed by Stanley Hauerwas, here, who notes that "[a]sking me to write a review of Peter Leithart's defense of Emperor Con­stantine may seem like asking the fox to inspect the henhouse."  There are additional discussions at the "Christianbook.com Academics" forum.  I also thought that this discussion, by Matthew Nickoloff (who has a very interesting blog), helpful.

The Pulpit

By Rick Garnett

For a time-sucking helpful site, which collects posts from a number of (it's probably fair to say, conservative) religion-related sites and blogs, check out The Pulp.it.

Thursday, December 2, 2010

A comment on comments

By Rick Garnett

Longtime MOJ readers know that, for a long time, we did not open our posts to "comments" (though contributions from readers were often posted by bloggers).   In recent months, though, most of us have experimented with blogospherically-more-typical practice of welcoming comments.  In my view, the typical practice is a good one, for the most part.

That said, my impression is that the tone of too many (not most of course, but still too many) of the recent comments and intra-comments exchanges is unattractively snarky, sarcastic, aggressive, or just mean, and is unworthy of this blog's aims (to say nothing of its namesake). 

I know all too well that I've often fallen short when it comes to blog-charity, but I want to propose to all bloggers and readers that we not write and post a comment if its tone and content are such that we would not communicate the same thing, over a beer, to a friend with whom we (at the particular moment) disagree -- or, at the very least, if we would not communicate the same thing, face to face, in public.

Recusal as Politico-Religious Cudgel: More Thoughts on a Bad Idea

By Marc DeGirolami

Via Jonathan Adler at Volokh (the post is Eugene Volokh's), I learn that a motion was filed by the supporters of California's Proposition 8 to recuse Judge Stephen Reinhardt, one of three judges slated to hear the appeal in Perry v. Schwarzenegger.  And Ed Whelan notes today that Judge Reinhardt has already denied the motion, his reasons to follow in a memorandum.

This little flurry got me thinking again about the recent suggestion (both by some legal academics and the N.Y. Times) that recusal decisions ought to be reviewed by other judges.  I continue to believe this to be a dreadful idea, and wanted to explore how it might operate at the federal court of appeals level (rather than, as in my previous post, at the Supreme Court).  In addition to the objections in that earlier post, I believe that this process might very well implicate judges in the public perception that they are assessing the legitimacy of each other's religious, or anti-religious, beliefs as applied to pending legal matters.

I'll use the Ninth Circuit as my example, both because this recusal motion is a Ninth Circuit creature and because, having clerked for a judge on the Ninth Circuit, Judge Jerome Farris, a wonderful man whom I'm fond of, I have a very little bit of knowledge about the dynamics of the Ninth Circuit's operations.

Continue reading

Family law, social norms, and tipping points

By Rob Vischer

This morning I'm preparing for a Family Law class in which we discuss, by way of review of the various topics covered in the course, how the law has been emptying itself of moral content.  (Think no-fault divorce, the rise of prenuptial contracts, the narrowing of permissible rationales for child custody decisions, the demise of alimony, the elimination of fault as grounds for property division, and the decriminalization of adultery, fornication, etc.)  I don't consider all of this to be a bad thing (though some of it is), in part because the state is not always the most effective means by which to maintain and/or implement moral norms in society.  This assumes, however, that society has other means for maintaining those norms.  An open question, I admit, especially when I come across stories like this one from Russia.  I do wonder what it takes for a society to reach a tipping point on social practices related to the family that we currently take for granted, and whether there is a role for the law in supporting those practices long before the tipping point is reached.  (I will note that the formidable threat to the family in Russia appears to have little or nothing to do with same-sex marriage, as that conversation, in my understanding, hasn't even gotten rolling there yet.)

The Obvious

By Marc DeGirolami

Here's a story about the Smithsonian's decision to pull a video that shows ants crawling all over a crucifix.  The video was part of an exhibit on "sexual identity in portraiture."

Not quite sure what the problem was.  Doesn't everybody think of ants crawling all over a crucifix when they think about sexual identity?

Huckabee and the Death Penalty: Where is the Christianity?

By Steve Shiffrin

Mike Huckabee has called for application of the death penalty to the source of the recent disclosures by WikkiLeaks. One might wonder how an evangelical Christian like Huckabee can square his Christianity with his support for the death penalty. In response to this question, Huckabee gave a breathtaking response in 1971, “Interestingly enough,” he said, “if there was ever an occasion for someone to have argued against the death penalty, I think Jesus could have done so on the cross and said, ‘This is an unjust punishment and I deserve clemency’.”  See here. From the failure of Jesus to protest in this way, Huckabee concluded that Jesus was not opposed to the death penalty. I suppose it follows that Jesus was not opposed to torture or the killing of innocent men.

Seriously, I wonder what biblical argument a serious evangelical could make in support of the death penalty. I suppose a starting point would be that the Sermon on the Mount and the rest of the preaching of Jesus was not directed to and does not apply to how governments should operate, but rather to how disciples should live their lives. But, even if that were true (I do not believe it is), that would come nowhere near the conclusion that Jesus affirmed the death penalty. Indeed, it seems to me that Christ’s death on the cross is compelling witness against violence. As Stanley Hauerwas puts it, “What I find absolutely crucial is reflecting on Christ’s death and resurrection. What that means is that God would rather die, God would rather have God’s own Son die, than to redeem the world through violence. And that central story is what Christians are about.”

cross-posted at religiousleftlaw.com

Wednesday, December 1, 2010

More on the Church and "political" activity

By Rick Garnett

Rob linked here to his very helpful and thoughtful Commonweal piece about the charge that Arbp. Nienstedt acted in a "political" (and, so, inappropriate) manner by opposing publicly same-sex marriage in the recent election. For what it's worth, I addressed similar questions in this USA Today op-ed, a few years ago:

Does politics have a place in the pulpit? Should places of worship be homes for engaged and unsettling activism — or tranquil havens, sealed off from the rough-and-tumble of today's bitter partisan debates? These questions are both cutting-edge and perennial. . . .

For starters, and with all due respect to Jefferson, the First Amendment does not constrain — in fact, it protects — "political" preaching and faith-filled activism. Yes, our Constitution preserves a healthy separation between the institutions of religion and government. This wise arrangement protects individual freedom and civil society by preventing the state from directing, co-opting or controlling the church. It imposes no limits, though, on conversations among religious believers — whether on Sunday morning, around the water cooler, or at the dinner table — about the implications of their faith for the controversies of the day. Our First Amendment protects religious freedom, individual conscience and church independence from government interference; it requires neither a faith-free public square nor politics-free sermons.

Even if the Constitution does not presume to tell ministers to stick to parables, is it bad citizenship, or just plain bad manners, for ministers to confuse our "public" role as citizens and voters with our supposedly "private" religious lives and beliefs? No. Religious faith makes claims, for better or worse, that push the believer inexorably toward charitable and conscientious engagement in "public life." To the extent that religion purports to provide insight into human nature and relations, it necessarily speaks to politics. We best respect each other through honest dialogue by making arguments that reflect our beliefs, not by censoring ourselves or insisting that religious believers translate their commitments into focus-group jargon or cost-benefit analysis. . . .

Of course, there are good reasons — religious reasons — for clergy to be cautious and prudent when addressing campaigns, issues and candidates.

Reasonable people with shared religious commitments still can disagree about many, even most, policy and political matters. It compromises religion to not only confine its messages to the Sabbath but also to pretend that it speaks clearly to every policy question. A hasty endorsement, or a clumsy or uncharitable political charge, has no place in a house of worship or during a time of prayer — not because religion does not speak to politics, but because it is about more, and is more important, than politics.

More on Sen. Rubio and religious identity

By Rick Garnett

Following up on Marc's recent post:  Fr. Lorenzo Albacete comments here on the questions that have surfaced about Sen. Rubio's religion, and the possibility / merits of Christian eclecticism:

[T]he loss in awareness of what a Catholic identity means is indeed threatening the Hispanic Catholic community in the United States. Senator Rubio’s case may be a harbinger of where Hispanic Catholics in America are going. 

At the same time, this trend to reduce the meaning of a Catholic identity to folklore, to cultural traditions and to a content-free spirituality also threatens American Catholics in general. I am reminded of the observation of Curtis White in Harper’s Magazine (December 2007) already quoted in an earlier column here. We are dealing with the American kind of nihilism. For Nietzsche, European nihilism was the failure of any form of belief. “American nihilism is something different. Our nihilism is our capacity to believe in everything and anything all at once. It is all good!”

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