MOJ readers will want to check out the newly published two volumes (here and here) of Wilson Carey McWilliams's collected essays edited by Patrick Deneen and McWilliams's daughter, Susan McWilliams. Patrick has posted a reflection on McWilliams and the introduction to one of the volumes here. The Democratic Soul: A Wilson Carey McWilliams Reader includes "Critical Rebound: Why America Needs a Catholic Recovery," which is based on a lecture McWilliams (who was a Protestant) delivered at Boston College in 2003:
Begin with the Augustinian truth: The Church, like its rivals, aspires to speak of and for the City of God, but it must speak in and to the City of Man. The transcendent is its reason for living, but it must live in order to fulfill that reason. Compelled to adapt to the temporalities, religion must also be watchful lest it become simply a function of time and place. If a church accommodates too much to society, it loses its distinctive character, and along with it any strong sense of community or claim on the identity of its members. But if it makes the social cost of membership too high, a church risks shrinking to the dimensions of a sect. At least implicitly, religion bargains with society, distinguishing between the first principles that are the perennial heart of its faith and the teachings and disciplines that it can de-emphasize or abandon in response to new circumstances.
The current clergy sex abuse scandals represent the most severe crisis in the history of the American Church, calling, in some measure, its bargains with society and with its own membership into question. American Catholics must hope for a season of atonement, knowing that this will bring turbulence and pain. Yet all Americans have a stake in the outcome: The Church’s future in this red-dawning century is inseparable from that of the republic.
Like many states, Minnesota is having a major political brawl over the budget. Archbishop Nienstedt, who has spent most of his time here taking heat from the left over his views on marriage, is now getting some heat from the right for advocating "socialist" policies. GOP state senator David Hann accused the Archbishop of endorsing "the socialist fiction that it is a moral necessity to take the property of the 'wealthy' under the assumption that those resources are better used by politicians and bureaucrats than by the individuals who earn them." For good measure, Sen. Hann threw a quote from R.R. Reno at the Archbishop proposing that the problem with the American poor is primarily moral, not financial. Despite our ongoing efforts, Church teaching continues to defy easy political categorization!
Here is the statement ("To Live Each day with Dignity") on assisted suicide that the US Bishops approved today. Here is a brief comment I made on the University Faculty for Life blog:
The statement provides a useful summary of the problems posed by the campaign to legalize assisted suicide. The Bishops advocate “the way of love and true mercy” (a phrase they borrow from Pope John Paul II), a way “anchored in unconditional respect for …the human dignity [of patients], beginning with respect for the inherent value of their lives.”
The Supreme Court today decided Tapia v. United States, a decision interpreting 18 U.S.C. section 3582(a). The issue had to do with the permissibility of the imposition of a term of imprisonment specifically for the reason that it would advance the function of rehabilitation. The language in question is this: "The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation."
The portion of Justice Kagan's majority opinion interpreting the language of the statute is worth reading for itself, but of even greater interest to me was the earlier discussion of the history of American federal sentencing. I had not realized sufficiently that rehabilitation was perhaps the most crucial aim of the indeterminate sentencing system which was in place in the U.S. before passage of the Sentencing Reform Act -- in fact, that rehabilitation was thought to be fundamentally tied to indeterminate sentencing. Historically, that has not necessarily been the case. That is, (comparatively) indeterminate sentencing schemes have often been supported without any correlative support for rehabilitation as the crucial function of punishment. The association of rehabilitation with indeterminate sentencing strikes me as a mid-twentieth century American phenomenon.
Also interesting is the simple fact that the SRA prohibits a judge from imposing incarceration for rehabilitative purposes. This, too, as the amicus pointed out, is quite different than the earlier understanding of the pointedly rehabilitative purposes of incarceration.
A few days ago, Robby George challenged Herman Cain to renounce his stated position on Muslims. Will Saletan expands on the problem with Cain's position.
Holning Lau and Charles Strohm examine the empirical evidence regarding the health effects of legally recognizing same-sex couples:
This Article presents a literature review of empirical studies concerning the ways in which legal recognition of same-sex relationships impacts individuals’ health and well-being. We discuss the studies’ methodologies, findings, limitations, and implications for the debate on reforming marriage laws.
The recent research on same-sex couples is consistent with what some legal commentators have previously inferred from earlier research on different-sex couples. Such commentators have inferred that legally recognizing same-sex couples generally improves those couples’ health and well-being by promoting care between the couple and enhancing support for the couple from third parties such as family and friends. By synthesizing and presenting recent research that focuses on same-sex couples directly, this Article helps to bridge the inferential gap.
It is true, as Michael Moreland mentions, that Martha Nussbaum has taken to complimenting Jacques Maritain as the first "political liberal," by which she means that he was Rawlsian before Rawls himself invented "a theory of justice." My own attempt to come to the late Maritain's defense is here. Nussbaum's spirited reply to my attempt to situate Maritain at an appropriate distance from the principle of the priority of the right over the good can be found at 54 Villanova Law Review 696-99 (2009). I confess that I do think there is *something* to Nussbaum's claim (which probably goes to some aspects of Maritain's political philosophy that don't in the end stand up to proper scrutiny), but I consider it demonstrable that Maritain intended to deny and did deny the legitimacy of the basic political strategy that Rawls (and others) would later pursue. The author of the following passage is not Rawlsian at heart: "I distrust any easy and comfortable friendship between believers of all denominations. I mean a friendship that is not accompanied, as it were, by a kind of compunction or soul's sorrow; just as I distrust any universalism which claims to unite in one and the same service of God, and in one and the same transcendental piety -- as in some World's Fair Temple -- all forms of belief and all forms of worship." (Maritain, On the Use of Philosophy, 38). To be sure, the later Maritain did deny that the civil ruling authority could properly privilege the place of the Catholic Church in the state (pace Ottaviani!), but he certainly never limited the aims of law to what would pass the test of the two basic principles of justice. In relevant respects, Maritain's account of the natural law as the source and limit of the positive law is quite traditional, which assures that he is no political liberal.
Yours, thanks to the modern miracle of SSRN: John Finnis, "Philosophy of Law: An Introduction." Here is the abstract:
This Introduction to my 'Philosophy of Law: Collected Essays Volume IV' (Oxford University Press 2011), published in the United Kingdom in early April, and in the United States in early May 2011, introduces the volume’s 22 published and unpublished essays, and follows the volume’s division into four Parts: Foundations of Law’s Authority; Theories and Theorists of Law; Legal Reasoning; and the Two Senses of “Legal System.” The first half of the Introduction is, in effect, a brief new essay on the foundations of the positivity of positive law, revisiting issues taken up in chapter I of Natural Law and Natural Rights and issues involved in the so-called sources thesis and in the labeling of theories as “positivist.” Later parts of the Introduction indicate some patterns emergent in the volume’s many essays on particular theorists and theories; review the bearing of the “one-right answer” thesis on legal reasoning and some prime examples of judicial misreasoning; and the relation of the idea of “legal system” to issues around the emergence of independent states in the British Empire, and around Britain’s absorption into and subjection to the European Union. The Introduction, like the volume, intersects with the Introductions to, and contents of, each of the other volumes in the five-volume set, which is published just before the second edition of Natural Law and Natural Rights, reformatted to accompany the set and incorporating a 65-page Postscript. The Collected Essays are I Reason in Action, II Intention and Identity, III Human Rights and Common Good, IV Philosophy of Law, V Religion and Public Reasons. Each volume includes the index for the set, and the author’s bibliography.
