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.

Thursday, January 13, 2011

Conscience (but mostly Rawls) in Pavia

This week I had the thoroughly enjoyable experience of participating in a symposium at the University of Pavia in Italy celebrating the publication of a new book on the law's treatment of religious and cultural diversity in Europe.  The conversation centered on liberty of conscience and what that means (and should mean) in European society today.  What struck me was the contrasting set of intellectual figures who serve as the touchstones for these sorts of conversations in Europe versus those in the United States.  When we talk about the liberty of conscience in the U.S., we tend to look to history (or even theology) initially, and figures such as James Madison, Thomas Jefferson, and Roger Williams will figure to crop up sooner or later.  In the conversation in Pavia, the figures referenced most frequently were: 1) John Rawls; 2) John Rawls; and 3) John Rawls.  Obviously, when Rawls is the starting point, the liberty of conscience will end up in some curious places.  One participant, for example, argued that a claim of conscience must be grounded in public reason; if not, the claim should be treated as a preference with no more force than other preferences. 

Another participant was more supportive of individual conscience-based claims for legal exemptions, and while he could defend group claims as the aggregation of individual claims, he could not find space within his framework for institutional claims.  The operating premise was that the state's authority is all-encompassing unless an individual (or a collection of indivduals) possess a sufficient countervailing interest to exempt herself from a particular exercise of authority.  Institutions do not fit because they are simply "sets of rules."  The notion of state power being limited in some non-instrumental way was not on the radar screen.

So while the hospitality of my hosts was fabulous, and the conversations challenging, I was reminded that the premises from which we begin the conversation have a significant impact on whether we have much to talk about.

Wednesday, January 12, 2011

A.W.B. Simpson's "Legal Iconoclasts and Legal Ideals"

I recently heard of the passing of A.W.B. Simpson.  I never had the chance to meet him, to my regret, as he was a writer whom I admired -- one could sense in him deep learning, but always lightly expressed, and a powerful common law sensibility.

Perhaps readers will know some of his great books.  One of the best known (rightly so) is Cannibalism and the Common Law, a wonderful historical tour of the famous Dudley & Stephens case (and useful supplementary reading for criminal law teachers who like to talk about the choice of evils!).

But one of my favorite pieces of his is a little essay delivered as the 1989 Marx Lecture at the University of Cincinnati and published in its law review, with the title, "Legal Iconoclasts and Legal Ideals."  Unfortunately, the piece is only available to people with access to Westlaw, Hein, etc., but after the jump, I'll summarize what I enjoy about it.

Continue reading

Tuesday, January 11, 2011

A conference of interest: "Natural Law and Evangelical Political Thought"

A friend passes on this notice, which might be of interest:

I am writing to invite you to attend “Natural Law and Evangelical Political Thought”--a conference hosted by Westmont College in Santa Barbara, California, February 17-19, 2011. 

Long a cornerstone of social and political thought in the broader Christian tradition, natural law theory describes moral norms common to all humans and intelligible to all. Several scholars have recently critiqued evangelicals for neglecting natural law in their political thought. Its relative absence, they contend, has weakened the coherence of evangelical political thought, limited the extent to which evangelicals can communicate with others, and undermined efforts to reach common ground in political morality. This conference brings together a diverse group of scholars to explore a variety of questions on the role of natural law in evangelical political thought. 

Featured speakers giving public addresses will include Professor Robert George of Princeton University and Professor J. Budziszewski of University of Texas, Austin. In addition, there will be nine workshop-style conference panels discussing papers written by invited scholars. 

For more information, please visit: http://www.westmont.edu/natural-law/index.html

Great news from Chicago!

My friend T.J. D'Agostino, who does great work with Notre Dame's "Alliance for Catholic Education" project, reports some really good news out of Chicago: 

The largest Catholic school system in the U.S., the Archdiocese of Chicago, can now boast enrollment growth in the city’s Catholic schools for the first time since the 1960's. In the midst of the worst and most stubborn recession this country has seen since the Great Depression, this news is simply incredible, almost miraculous! . . .

More like this, please!

G.E. M. Anscombe (!!!) in the NYT

MOJ-ers might be interested in this interesting profile, which appeared in a recent issue of the NYT, of G.E.M. Anscombe and her work.  I'm not an expert, of course, by my sense is that the author, Mark Oppenheimer, did a nice job with the piece (though, one friend noted that this description of action theory -- "a sub-field concerned with how our brains cause our bodies to do things" -- might be a bit off.)

Arbp Dolan and abortion in New York

"In response to recent statistics revealing that 41 percent of pregnancies in New York City in 2009 ended in abortion, New York Archbishop Timothy M. Dolan reiterated the pledge of his predecessors to help any pregnant woman in need" (More here, in The Catholic Sun).  Excellent.  As Michael Sean Winters notes, though, the National Organization for Women was not pleased by the Archbishop's offer, and instead suggested that the Church is inconsistent for opposing abortion and contraception:  "The Catholic Church isn’t willing to support the use of contraception," they note, "so how exactly do they want to reduce unintended pregnancies?"  Sheesh. 

Monday, January 10, 2011

Kaczor on "The Ethics of Abortion"

This new book will be of interest to many MOJ readers:

Appealing to reason rather than religious belief, this book is the most comprehensive case against the choice of abortion yet published. The Ethics of Abortion critically evaluates all the major grounds for denying fetal personhood, including the views of those who defend not only abortion but also infanticide. It also provides several (non-theological) justifications for the conclusion that all human beings, including those in utero, should be respected as persons. This book also critiques the view that abortion is not wrong even if the human fetus is a person. The Ethics of Abortion examines hard cases for those who are prolife, such as abortion in cases of rape or in order to save the mother’s life, as well as hard cases for defenders of abortion, such as sex selection abortion and the rationale for being “personally opposed” but publically supportive of abortion. It concludes with a discussion of whether artificial wombs might end the abortion debate. Answering the arguments of defenders of abortion, this book provides reasoned justification for the view that all intentional abortions are morally wrong and that doctors and nurses who object to abortion should not be forced to act against their consciences.

Richard Stith on "Happy Holidays"

MOJ-friend Prof. Richard Stith was kind enough to share with me this short essay, called How "Happy Holidays" Hurts:

Good people are often mystified at the offense taken by many Christians to the salutation “Happy Holidays!” After all, they reason, the word “holidays” includes everyone, instead of excluding anyone, so what’s the problem?

My short response would be that, to the ears of many of us, “Happy Holidays” actually silences all faiths rather than welcoming any of them. In order to explain my point, let’s go back and see what the problem was with “Merry Christmas,” our culture’s traditional December greeting.

As far back as I can remember, Christmas was named and celebrated by people of varied faiths and of no faith at all. No doubt many have just liked the bright lights or the tradition of giving associated with Christmas, but some have surely recognized the irreplaceable gift of Christmas itself to world civilization, in terms not only of art and music but of the radical dignity of the humblest birth.

Unfortunately, some contemporary cultural engineers think that Christmas is tainted by its religious origin and that the best or only way to accommodate the many religions found in today’s America is to reduce them all to their lowest common elements. Since every religion celebrates “holidays” (a word derived from “holy days”), our politically correct mentors tell us that “holidays” are all we may mention. We may not name the specific holiday that each community is celebrating (at least not if that holiday is one celebrated by a majority religion like Christianity).

However, it doesn’t make sense to try to include all religions by excluding every possible reference to any of them. A simpler strategy would be to include by including. This point was brought home in a delightful and profound way in a recent Northwest Indiana Times column by Christine Kraly (“Yes, I said ‘Merry Christmas’”, Dec. 26, 2010). She pointed out that her “Merry Christmas” need not exclude any other greetings. As a Christian about to marry a Hindu, she is also comfortable wishing her in-laws-to-be a “Happy Diwali.” Nor does she take offense when in their exuberance they wish her a “Happy Diwali.” In a multicultural world, we can give one another much joy by sharing our feasts.

By contrast, just repeating “Happy Holidays” is an empty and boring way to live together.  It’s really not multicultural at all; it’s just a flat one-size-fits-all unicultural expression. In rightly rejecting domination by one religion, it rejects the content of all religions. That’s why “Happy Holidays” hurts the feelings of many Christians, while “Happy Diwali” (or “Happy Hanukkah” or “Happy Eid”) does not. “Happy Diwali” gives, while “Happy Holidays” takes away.

Those who have trouble seeing this point might consider how many of us would feel irked if there were pressure to substitute “Happy Holiday” for “Happy Valentine’s Day,” on the ground that St. Valentine was a Christian. Wouldn’t that change be felt widely to be a loss, a flattening? People might even gradually become less likely to give candy or flowers; after all, we don’t do so to commemorate most of what we call “holidays”.

Indeed, the merchants who switch to “Happy Holidays” instead of “Merry Christmas” may be cutting their own throats. Christmas calls for the giving of presents far more than any other holiday. Once we have been trained not to think about “Christmas presents” anymore, our felt need to purchase them may slowly disappear.

Choosing Life in Difficult Circumstances

This isn't Catholic Legal Theory, either, but it's important to those to whom it might be relevant.  I just received a notice from a friend (Amy Kuebelbeck) about a  forthcoming book which she co-edited:  A Gift of Time: Continuing Your Pregnancy When Your Baby’s Life Is Expected to Be Brief, coming out on  Jan. 26 from Johns Hopkins University Press.  

The description from the notice: 

This book is written for parents who learn through prenatal diagnosis that their baby likely will die before or after birth and who wish to continue the pregnancy and embrace whatever time they are able to have together.

Based on material from more than 120 parents from across the U.S., Canada, Europe, and Australia, A Gift of Time draws extensively from parent experiences and includes many direct quotes that tell powerful stories of their own. Full of practical suggestions for parents and for caregivers, it also promotes the innovative concept of perinatal hospice and palliative care.

I haven't read this new book, but I have read Amy's memoir about this experience:   Waiting with Gabriel: A Story of Cherishing a Baby's Brief LifeThat book was one of the most beautiful and profound meditations on love and the value of life that I've ever read.  I'm sure this new collection will be just as beautiful and profound.   

Not Catholic Legal Theory Department

So there I was on an airplane, organizing my things on an extremely packed flight right before takeoff, when what should pass down the aisle but a woman walking (or maybe being led by) a small canine -- one of those creatures more realistically classified as rodentiform.  I looked around for some sort of explanation, but only saw other gaping maws.

I came to find out later on the flight that this is an animal which serves to calm the owner's anxiety -- or, as I've since learned, an "Emotional Support Animal."  Apparently if one obtains a doctor's note, one can bring a loose animal onto an airplane packed to the gills with people because one is thereby emotionally assisted in managing the flying experience.  Knowledgeable readers, do I have this right?

If I do, it leaves me wondering how much anxiety is sufficient to get you your plane pet, and of what sort.  How bad does your anxiety need to be to compel other people to tolerate being touched or perhaps even rubbed by a foreign, hairy beast, with no possibility of moving?  And what if the animal defecates or vomits, and one has an anxiety about being trapped in a small space with nothing to breathe but re-processed, dung-scented air?  Are there limits to the sort of animal that one can bring that somehow are more restrictive than Mill's harm principle?  If you find Bengal tigers emotionally assuaging, probably that wouldn't "fly,"  but what about my frisky and oh-so-friendly yellow lab? 

And how unstable is unstable enough to obtain this privilege?  I sometimes have anxieties on planes -- not at all about the flying or the bumps, but about the other people, their personalities, and their proximity to me.  I take it this would not be good enough.