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, June 15, 2011

"It's not about you"

By Rick Garnett

I'm not the bigggest David Brooks fan, but I thought his op-ed, "It's Not About You," from a few weeks ago, about the right message to send to new college grads, was very thoughtful, and very "Catholic" in theme.  Especially this, from the end:

Today’s grads enter a cultural climate that preaches the self as the center of a life. But, of course, as they age, they’ll discover that the tasks of a life are at the center. Fulfillment is a byproduct of how people engage their tasks, and can’t be pursued directly. Most of us are egotistical and most are self-concerned most of the time, but it’s nonetheless true that life comes to a point only in those moments when the self dissolves into some task. The purpose in life is not to find yourself. It’s to lose yourself.

 

Nussbaum on Perfectionist and Political Liberalism

By Michael Moreland

One of the summer delights at Villanova is taking a break from research and writing to participate in a biweekly reading group on moral, political, and legal philosophy organized by my friend and colleague Michelle Madden Dempsey. We recently read Martha Nussbaum's article "Perfectionist Liberalism and Political Liberalism," 39 Philosophy and Public Affairs 3 (2011), in which Nussbaum offers a strong defense of Rawlsian political liberalism against Razian perfectionist liberalism. I have some significant reservations about aspects of the article, particularly Nussbaum's characterization of the incompatability of religion and pluralism (14-15) and her discussion of the "irrationality" of Christianity on account of its doctrines of the Trinity and of grace (26-28), where I think her treatment of these issues is much too compressed. Nussbaum does say some nice things about Jacques Maritain, however, and she writes he might be called "the first political [ie, Rawlsian] liberal." (Patrick Brennan and other fans of Maritain can tell us if the compliment is welcome.)

Nussbaum gives an excellent summary and defense of the Rawlsian account of political liberalism and the central importance of respect for persons in that account--in some ways, her reconstruction here is more persuasive and clearer than one finds in Rawls himself. And I especially liked Nussbaum's slap at utilitarianism and its frequent failure to consider the political implications of a utilitarian view. Nussbaum writes, "The concept of political liberalism is simply ignored in a large proportion of discussions of welfare and social policy, as are the challenges Rawls poses to thinkers who would base politics on a single comprehensive normative view," and then drops this footnote: "This is true to some extent even in philosophical utilitarianism: Peter Singer, for example, has never, to my knowledge, addressed the challenge that political liberalism raises for his comprehensive view. It is ubiquitously true in philosophically informed areas of welfarist economics" (6, n.9).

Next up: John Gardner's brilliant paper "What is Tort Law for? Part 1: The Place of Corrective Justice."

Gorgias Ascendant

By Marc DeGirolami

Sophistry -- an ethic for our times, here (h/t MLM).  Or, of course, here:

GORGIAS: Well, I do not think, Socrates, that we ought yet to depart, but you should carry through the discussion, and I think the others too agree with me.  I myself am anxious to hear you go through what remains.

SOCRATES: I myself, too, Gorgias, would have liked to continue the argument with Callicles here, until I had paid him back with the speech of Amphion in reply to that of Zethus.  But since you are unwilling, Callicles, to help me finish the argument, you can at least listen and interrupt if at any point you think I am wrong.  And if you refute me, I shall not be vexed with you as you are with me, but you shall be enrolled as the greatest of my benefactors.

CALLICLES: Go on alone, my dear sir, and finish the argument.

Tuesday, June 14, 2011

Less subject?

By Patrick McKinley Brennan

Living, as we do, under a diminished sense of the ontology of groups, even of the Church, it is all too easy to conclude that groups are not bound by the obligations to God that bind individuals.  In the period leading up to the Council that delivered Dignitatis humanae and its important celebration of the inviolability of individual conscience, good Catholics continued to recognize that the state was no less obligated to honor God than individuals were.  In a lecture at the Pontifical Lateran Universtiy in March of 1953, Cardinal Ottaviani made the point in these terms:  "Men living together in society are not less subject to God than they are as individuals, and civil society, no less than individual human beings, is in debt to God, 'who gave it being and maintains it, and whose ever-bounteous goodness enriches it with countless blessings.'  [Immortale Dei].  Accordingly, as it is not lawful for any individual to neglect his duties to God and to the Religion according to which God wills to be honored, in the same way 'states cannot without serious moral offense conduct themselves as if God were non-existent or cast off the care of religion as something foreign to themselves or of little moment.' [Immortale Dei]."  J.C. Murray, of course, had important things to say by way of criticism of the traditional view espoused by Card. Ottaviani, and E.A. Goerner, in his towering book Peter and Caesar (1965), has some appropriately harsh things to say about how some pursue the Ottaviani (= traditional) line without adequate attention to particulars, among other faults (pp. 153-72).  Goerner, though, goes on to advocate the indispensability of striving "to Christianize politics" (p. 269).  Goerner's argument remains a timely warning against a too-ready embrace of Murray's colonizing historicism.

 

 

A visit to Italy to discuss civic values

By Robert George

I have just returned from Italy, where I gave the graduation address for the Master of Civic Education program at the Ethica Institute in the charming city of Asti.  It was a wonderful opportunity to engage some of Italy's most gifted and promising young intellectuals.  Ethica is performing a great service to the Italian nation by promoting the rigorous and appreciative study of civic values that must be in place if a regime of republican liberty is to be sustained.  Scholars representing a spectrum of political viewpoints are assisting in the project.  Students at Ethica have the great advantage of hearing the best arguments that can be made on different sides of questions that are at the center of Italian politics today. It is often lamented by public spirited Italians that civic discourse in their nation has degenerated into the rankest forms of partisanship. They say that political discussions frequently amount to exchanges of insults and other forms of verbal abuse.  Ethica is doing something to change that.  Its efforts deserve praise and support.

While in Italiy, I also had the opportunity to participate in a debate with my dear friend and colleague Maurizio Viroli at the Collegio Milano. Professor Viroli is a distinguished scholar of the history of political thought.  The debate concerned a topic that is of vital interest to Italians as well as Americans:  religion and politics.  Professor Viroli, though a confirmed secularist and man of the left, spoke so much truth and good sense that I had trouble finding points to disagree with him about! I suspect that his very positive evaluation of the role of religious faith in civic life scandalized some European secularists in the audience. He skillfully used the work of Harvard political scientist Robert Putnam to support his position. As I said to the audience, I mainly felt like shouting "Amen, brother. Hallelujah!"

Curiously, the one major point of disagreement between us turned out to be about the interpretation of a passage in the Bible.  Almost in passing, I offered an interpretation of the teaching of Genesis that man is made in the image and likeness of God that stressed the God-likeness of the human capacities for reason and freedom.  Following Aquinas---an Italian, of course---I proposed that our dignity as human beings is anchored in our nature as free and rational creatures.  (By "rational" I mean, and Aquinas meant, the rich, Aristotelian conception of rationality, not the thin modern conception that instrumentalizes reason and reasoning and reduces rationality to a form of calculation or even computation.)  Professor Viroli rejected that interpretation, proposing instead that the Biblical claim is that man is God-like in his capacity for caritas (charity, love). My rejoinder was that caritas or love is properly understood, not as something standing in contradistinction to reason and reasoning, but fundamentally as a rational power.  (This strikes some modern ears as odd, mainly because so many people have bought into the instrumentalized, and thus impoverished, understanding of rationality as basically a form of calculation.)  Love is not primarily a matter of feeling or emotion, but rather an act of the will (which, as Aquinas rightly noted, is a rational appetite). To be sure, love has its affective dimensions, but it is above all an activity---the active willing of the good of the other for the sake of the other.  It is not an accident that love (like laughter) is an activity of rational creatures.

Italy is my ancestral homeland on my mother's side.  That made it a special joy to be there, discussing issues of the deepest human meaning.  (The food was pretty amazing, too!)

Are Minnesotans Too Nice to Win the Presidency?

By Michael Moreland

For a relatively small state on the Canadian border, my home state of Minnesota has produced a disproportionately large number of presidential candidates, though all were unsuccessful at winning the White House: Harold Stassen (who sought the Republican nomination eight times between 1948 and 1992 and seriously contended for the nomination in 1948 and 1952), Eugene McCarthy (a former Benedictine novice who came close to winning the Democratic nomination in 1968 and ran again in 1972 and 1976), Hubert Humphrey (the "Happy Warrior" who sought the Democratic nomination in 1952 and 1956, almost defeated John F. Kennedy for the Democratic nomination in 1960, and narrowly lost the general election to Richard Nixon in 1968), and Walter Mondale (who won the Democratic nomination in 1984 but lost the general election to Ronald Reagan in a landslide). There are two Minnesotans now seeking the 2012 Republican nomination: former two-term Governor Tim Pawlenty and U.S. Rep. Michele Bachmann. Compare those six candidates from Minnesota to California's five over that period: Ronald Reagan (1976, 1980, 1984), Richard Nixon (1960, 1968, and 1972), Jerry Brown (1976, 1980, 1992), Alan Cranston (1984), and Pete Wilson (1996).

During last night's Republican debate in New Hampshire, Governor Pawlenty declined to attack former Massachusetts Governor Mitt Romney's health care record despite several attempts by the moderator, John King of CNN, to goad Governor Pawlenty into a confrontation. Gene McCarthy was also reluctant to attack Robert Kennedy in the 1968 campaign (though McCarthy was privately disdainful of Kennedy), and Hubert Humphrey distanced himself from President Johnson and the Administration's policy on the Vietnam War only very late in the 1968 general election campaign, which may have cost Humphrey the election against Nixon. Minnesotans' civility and decency are a tonic for a coarsened political culture, but perhaps they have also been our undoing.

Strangulation and Undercriminalization

By Marc DeGirolami

It seems to be something of a truism these days that there are too many criminal laws, and too many new criminal laws being created.  There is much that is sensible about the claims of overcriminalization; I'd recommend especially the (as usual) superb and thoughtful treatment by Doug Husak, Overcriminalization: The Limits of Criminal Law as well as a piece I think I've recommended before here by David Skeel and the late William Stuntz, Christianity and the (Modest) Rule of Law.

But not all new criminal laws are evidence of fatuous overcriminalization, even new laws which are used with frequency.  The offense (though of course not the act) of strangulation is a comparatively new phenomenon in criminal law.  New York passed its strangulation law in 2010, as did 13 other states.  The New York law creates three offenses, a misdemeanor and two felonies (classes C and D), and it is an important development in the law of domestic violence.  As this story explains (behind a pay wall, unfortunately), many victims of domestic violence state that they have been strangled at least once by their partner, but because strangulation often leaves no visible injury -- even when a victim has been strangled severely and near the point of death -- assailants generally could not be charged with anything more than harassment or some kind of simple assault.  The laws available did not accurately reflect the specific nature of the harm and threatened harm involved in strangulation.  Since the law's passage in New York and elsewhere, it has been used frequently, filling an undercriminalized gap. 

Group Agency

By Kevin P. Lee

I am sitting in a hotel room with a horrid summer cold. At least I have the company of a good book. Christopher List and Phillip Pettit have written Group Agency, which is an investigation into the behavior of groups. They are particularly concerned with understanding what it means to attribute agency to a collection of individuals. Using recent work in economics, social choice theory, and philosophy, they argue that groups possess agency apart from the individuals that compose them. And, this agency must be accounted for in social thought. Their conclusions are significant for many legal issues that we discuss today. 

Monday, June 13, 2011

Patrick Leigh Fermor

By Michael Moreland

Patrick Leigh Fermor, who died last Friday (obituary here), was one of the great figures of the twentieth century. His daring military exploits during World War II (where he led guerilla operations on Crete against the Nazis while disguised as a Cretan shepherd and kidnapped the commander of the German garrison) were combined with a remarkable literary career as a master of English prose and the author of two celebrated books (A Time of Gifts and Between the Woods and the Water) describing his 1934 walk across Europe at the age of 18. As Anthony Lane wrote in the New Yorker a few years ago, Leigh Fermor had "so much living to his credit that the lives conducted by the rest of us seem barely sentient--pinched and paltry things, laughably provincial in their scope, and no more fruitful than sleepwalks." But most of the obituaries for Leigh Fermor have neglected or mentioned only in passing his little book about French monasticism, A Time to Keep Silence, which includes this beautiful Latinate paragraph about the monastic life:

To begin with, I slept badly at night and fell asleep during the day, felt restless alone in my cell and depressed by the lack of alcohol, the disappearance of which had caused a suddent halt in the customary monsoon. The most remarkable preliminary symptoms were the variations of my need of sleep. After initial spells of insomnia, nightmare and falling asleep by day, I found that my capacity for sleep was becoming more and more remarkable: till the hours I spent awake; and my sleep was so profound that I might have been under the influence of some hypnotic drug. For two days, meals and the offices in the church--Mass, Vespers and Compline--were almost my most lucid moments. Then began an extraordinary transformation: this extreme lassitude dwindled to nothing; night shrank to five hours of light, dreamless and perfect sleep, followed by awakenings full of energy and limpid freshness. The explanation is simple enough: the desire for talk, movement and nervous expression that I had transported from Paris found, in this silent place, no response or foil, evoked no single echo; after miserably gesticulating for a while in a vacuum, it languished and finally died for lack of any stimulus or nourishment. Then the tremendous accumulation of tiredness, which must be the common property of all our contemporaries, broke loose and swamped everything. No demands, once I had emerged from that flood of sleep, were made upon my nervous energy: there were no automatic drains, such as conversation at meals, small talk, catching trains or the hundred anxious trivialities that poison everyday life. Even the major causes of guilt and anxiety had slid away into some distant limbo and not only failed to emerge in the small hours as tormentors but appeared to have lost their dragonish validity. This new dispensation left nineteen hours of absolute and god-like freedom. Work became easier every moment; and, when I was not working, I was either exploring the Abbey and the neighbouring countryside, or reading. The Abbey became the reverse of a tomb--not, indeed, a Thelema or Nepenthe, but a silent university, a country house, a castle hanging in mid-air beyond the reach of ordinary troubles and vexations. A verse from the office of Compline expresses the same thought; and it was no doubt an unconscious memory of it that prompted me to put it down: Altissimum posuisti refugium tuum...Non accedet ad te malum et flagellum non appropinquabit tabernaculo tuo [Thou hast made the Most High thy refuge...No evil shall befall thee nor any plague come near thy dwelling].

The Holy See at the U.N. on HIV/AIDS

By Elizabeth Schiltz

I had the extraordinary privilege of spending a few days with the Holy See's Delegation to the High Level Meeting on HIV/AIDS at the United Nations last week.  (In the category of examples of the truth of the adage, "Men plan, God laughs":  When I entered Columbia Law School decades ago, I had dreams of a career in international diplomacy, leading to some sort of work at the U.N.  I certainly could never have imagined the convoluted career trajectory that started me off as a corporate lawyer lobbying for banks in D.C., to an academic career teaching Contracts and Sales in Minneapolis, and only then actually took me to the U.N. -- as an Advisor to the Holy See.)

Despite my official title, I was doing more observing than advising.  One thing that I observed was the tremendous courage of H.E. Archbishop Francis Chullikatt, the Apostolic Nuncio, Permanent Observer Mission of the Holy See to the U.N., and his talented staff, and advisors like Jane Adolphe from Ave Maria School of Law.   The constant criticism of the Catholic Church for its position on the use of condoms tends to obscure the fact that the Church provides 25% of the world's care of people living with HIV/AIDS.  When you compare the breadth and scope of the Church's position on the needs of people living with HIV/AIDS with the more narrowly-focused, intensely political statements of most of the participants in the conference, the wisdom gained from that hands-on experience is clearly evident.  But, still, statements like Archbishop Chullikatt's here, and other similar statements by Professor Adolphe, are often greeted with derision (and even boo's) in this "most civilized" forum for debate.

Here's a taste of some of the battles that the Holy See's delegation has to fight.  The earliest drafts of the Political Declaration on HIV/AIDS that was being negotiated at this Meeting referred consistently to "evidence informed" approaches to addressing the HIV/AIDS crisis.  The Holy See negotiators consistently recommended changing this to "evidence-based."  What's the difference?  Take a look at this explanation from UNAIDS' "Terminology Guidelines" (Jan. 2011):

"In the context of research, treatment, and prevention, evidence usually refers to
qualitative and/or quantitative results that have been published in a peer-reviewed
journal. The term ‘evidence-informed’ is preferred to ‘evidence-based’ in recognition of
the fact that several elements may play a role in decision-making, only one of which may
be scientific evidence. Other elements may include cultural appropriateness, concerns
about equity and human rights, feasibility, opportunity costs, etc."

What's at stake?  Perhaps the fact that scientific evidence seems to be providing more and more validation of the effectiveness in HIV/AIDS prevention of programs stressing behaviorial changes such as abstinence and fidelity, and the ineffectiveness of prgrams stressing use of condoms?  (See, e.g., the work of Edward C. Green, former director of the Harvard AIDS Prevention Project, here and here.)

As I flew home after a couple of days of observing this sort of debate, I felt I really ought to reread Nineteen Eighty-Four. 

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