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.

Tuesday, September 20, 2011

"A Return to Repugnance"

My former student, Matt Emerson, has a new essay up at Patheos, called "A Return to Repugnance," in which he reflects on his own reactions to the recent stories about "reducing" twins in the womb.  He writes:

. . .  The old arguments—quarreling over Roe, debating about viability, debating the onset of "personhood"—seemed outmatched and outdated. Something had changed, and drastically.

The conviction hit me: We had arrived. We had arrived at the future we were cautioned about, the place where human life had no value except as a field of experimentation, where men and women manufactured life like canned food. Here, in this new place, unborn babies are called "singletons" and willful killing excites all the moral energy of selling a home.

You have to read the article to begin to absorb how bad things have become. . .

Matt then quotes from Leon Kass's famous essay, "The Wisdom of Repugnance":

In crucial cases . . . repugnance is the emotional expression of deep wisdom, beyond reason's power fully to articulate it. Can anyone really give an argument fully adequate to the horror which is father-daughter incest (even with consent), or having sex with animals, or mutilating a corpse, or eating human flesh, or . . . raping or murdering another human being? Would anybody's failure to give full rational justification for his or her revulsion at these practices make that revulsion ethically suspect? Not at all. On the contrary, we are suspicious of those who think that they can rationalize away our horror, say, by trying to explain the enormity of incest with arguments only about the genetic risks of inbreeding.

I understand the criticism of "yuck factor" arguments:  "If you cannot give a reason, then that must be because your position is a weak one.  After all, that's what we human beings do.  We give reasons -- reasons for or against action."  Martha Nussbaum and others have offered related criticisms of what they regard as unjustified morals legislation, e.g., that they rely on "disgust."  To be sure, that something is unfamiliar, unsettling, provocative, etc., does not mean it's wrong or to-be-proscribed.  And yet, in my view, given that we human beings are the kind of beings that we are, and assuming that we think it matters, morally, that we are the kind of beings that we are, there continues to be, as Kass suggested, some "wisdom" in repugnance.

Monday, September 19, 2011

Conference of Religiously Affiliated Law Schools

SPREAD THE WORD:

On May 2-4, 2012, Touro Law Center will host the biennial Conference of Religiously Affiliated Law Schools.  The Conference will explore a variety of important issues related to the general theme of "The Place of Religion in the Law School, the University, and the Practice of Law. "  Specific topics of discussion will include, among others: the relationship between the religiously affiliated law school and the university; bringing religion into the classroom;  law and religion programs and institutes; and the role of religion in the work of public interest lawyers.

Along with the formal Conference proceedings, there will be time for informal discussions among participants, on these and other issues of common interest.

In addition, Touro Law Center will help facilitate opportunities for participants (and accompanying family members) to enjoy New York culture and entertainment, both during the Conference and in the weekend that follows.

For more information on the conference, please contact Professor Samuel J.

Levine: [email protected].  For information on Touro Law Center, please see http://www.tourolaw.edu/ <https://legacy.tourolaw.edu/exchweb/bin/redir.asp?URL=https://legacy.tourola

w.edu/exchweb/bin/redir.asp?URL=http://www.tourolaw.edu/>

Remarks on Natural Law at Notre Dame

During my recent visit to Notre Dame to participate in the wonderful conference in honor of John Finnis organized by Gerry Bradley, I also had the opportunity to give a lecture for the ND Law School Federalist Society chapter.  The campus newspaper called the Irish Rover has published a story on my remarks, but the reporter, though plainly well-intentioned, didn't quite manage to report everything accurately.  So here is the text of what I actually said: 

Morality, Rationality, and Natural Law

Robert P. George

    If moral norms, including those prohibiting such evils as murder, rape, torture, enslavement, and genocide, are what they purport to be—namely, principles for guiding human choices and actions—then there must be a point to abiding by them; they must have some rational basis.  Do they?  What could provide such a point and basis?

    At the foundation of our moral thinking is our understanding that some things are worth doing or pursuing for their own sake.  It can make sense to act to promote or realize them even when we expect no further benefit from doing so.  In other words, they give us more than merely instrumental reasons for acting.  When we see the point of performing a friendly act, for example, not for any ulterior reason, but just for the sake of friendship itself—or when we see the point of studying abstract mathematics, the plays and sonnets of Shakespeare, or the structure of distant galaxies just for the sake of knowledge—we understand the intrinsic value of such activities.  We grasp the worth of friendship and knowledge (to take just two of many possible examples) not merely as means to other ends, but as ends in themselves.  Unlike money or insurance coverage, these goods are not valuable only because they facilitate or protect other goods.  Rather, they are themselves constitutive aspects of our own and others’ fulfillment as human persons.

    Of course, feelings and emotions can and do motivate our actions.  But the point here is that certain intrinsically worthwhile ends or purposes—like friendship and knowledge—do not appeal merely to our emotions, considered entirely apart from rational reflection and judgment.  They also appeal to our understanding—what Aristotle called our “practical reason.”  Thus, a complete account of human action cannot leave out the motivating role of reasons provided by ends or purposes whose intrinsic worth we grasp in intellective acts—what are sometimes called “basic human goods.”  Indeed, often it is the case that we desire to something as a result of our rational grasp of its inherent value.  Apart from our rational judgment that it is worth doing—i.e., that it provides a benefit and, thus, has an intelligible point—we would simply have no desire to do it.

    It is this truth that the brilliant 18th century philosopher David Hume spectacularly missed in proclaiming that “reason is, and ought only to be, the slave of the passions, and may pretend to no office other than to serve and obey them.”  For Hume, in other words, our brute desires specify our ultimate goals (e.g., survival), and the most that reason can do is tell us how to achieve those goals (e.g., eat this, refrain from eating that).  But human deliberation and action are a great deal more complex (and interesting) than Hume’s purely instrumental account of our practical reasoning—his reduction of reason to the role of emotion’s ingenious servant—would allow.  Our practical reason also makes possible judgments regarding which goals are intelligibly worth pursuing for their inherent benefits, and which, by implication, are merely instrumentally valuable or not of any value at all.

    If someone performs a friendly act just for the sake of friendship itself, and not solely for some ulterior motive (which would, after all, render it something other than a true act of friendship), we are not left baffled by it, as we would be left baffled by, for example, someone who for no reason beyond the act itself spent time repeatedly closing and opening a closet door, or walking up and down a busy street informing complete strangers that he likes the flavor of artichokes.  Indeed, we grasp the intelligible point of an act of friendship even if we regard the particular act as one that is not strictly required as a matter of friendship, and, indeed, even if we judge the particular act, though motivated by friendship, to be morally forbidden.  (Consider, for example, someone’s telling a lie to protect the reputation of a friend who has done something disgraceful.  Even if we make the moral judgment that such an act ought not to be done, we can understand the point or benefit of someone’s doing it.  We might well criticize such an act, but we would not find it baffling.)  We understand friendship as an irreducible aspect of our own and other people’s well-being and fulfillment.

    But again, friendship and knowledge are merely two of many aspects of our well-being and fulfillment as human persons.  We human beings are complex creatures.  We can flourish (or decline) in respect of various aspects of our nature.  For example, we are bodily creatures—organisms—and therefore can flourish (or decline) in respect of our physical health.  We are rational, and therefore can flourish (or decline) in respect of our intellectual well-being.  We are moral agents, and therefore can flourish (or decline) in respect of our character.  Although we are individuals, relationships with others in a variety of forms of friendship and community are intrinsic aspects of our flourishing, and not merely means to the fuller or more efficient realization of common individual goals.  And we can certainly flourish (or decline) in respect of the richness and quality of our relationships.  The list could go on.  My point is that the human good is variegated.  There are many basic human goods, many irreducible (and irreducibly different) aspects of human well-being and fulfillment.

    The variegated nature of human flourishing, and the fact that basic human goods can be instantiated in an unlimited number of persons in an unlimited number of ways, means that we must make choices.  Of course, many of our choices, including some serious and even tragic ones, are choices between or among morally acceptable options.  No moral norm narrows the possibilities to a single uniquely correct option.  But moral norms often do exclude some possible options, sometimes even narrowing them to one.  How can that be?

    Among those who share the view that morality is, in a deep sense, about human flourishing, there are two main schools of thought.  The first, known as utilitarianism (or, more broadly, as consequentialism), proposes that people ought always to adopt whichever option offers the best proportion of benefit to harm overall and in the long run.  There are many problems with this proposal, but the most fundamental is that it presupposes, quite implausibly, that different realizations of the human goods available in options for choice (e.g., this human life, that friendship, this part of someone’s knowledge, those aesthetic or religious experiences) can be aggregated or netted (and thus substituted) in such a way as to render the idea of “the net best proportion of benefit to harm” coherent and workable.

    This is a mistake.  To say, for example, that friendship and knowledge are both basic human goods is not to say that friendship and knowledge are constituted by the same substance (“goodness”) manifested in different (but fully replaceable) ways or to different degrees.  They are, rather, two different things, reducible neither to each other nor to some common factor of value.  To say that friendship and knowledge are basic human goods is merely to say that they have this, and only this, in common:  each can provide us with a reason for acting whose intelligibility as a reason is dependent neither on some further or deeper reason nor on some subrational motivating factor to which it is a means.

    This point can be seen by reflecting on what is lost or foregone in choices between truly good, but mutually exclusive options.  The good of the option not chosen is simply not to be found in the option that is; this is why regret is possible even when we make good choices.  If the utilitarian presupposition of commensurability were sound, then the “best” option would contain all the good contained in the other options, plus more.  There would be nothing to regret.

    The alternative to utilitarianism, at least for those who believe that ethical thinking proceeds from a concern for human well-being and fulfillment, is what is sometimes called “natural law” ethics.  Its first principle of moral judgment is that one ought to choose those options, and only those options, that are compatible with the human good considered integrally—that is to say, with an open-hearted love of the good of human persons considered in all of its variegated dimensions.  The specifications of this abstract master principle are the familiar moral precepts that most people, even today, seek to live by and to teach their children to respect, such as the Golden Rule (“do unto others as you would have them do unto you”), the Pauline Principle (“never do evil that good may come of it”), and Kant’s categorical imperative (stated most vividly in the maxim that one ought to “treat humanity, whether in the person of yourself or others, always as an end, and never as a means only”).  When applied to the basic human goods as opportunities for them arise in the concrete circumstances of life, these precepts yield fully specific moral norms such as those forbidding murder, rape, torture, enslavement, and genocide.  The movement of thought from our grasp of the many dimensions of human well-being and fulfillment to the first principle of morality and its specification in the form of more concrete norms of conduct is fundamentally—and decisively—the work of reason.

Crockpot and Microwave Catholics

Here's an interesting column by David Gibson from a couple of days ago about Catholics who have been raised as such from birth (often within a family structure), and those who convert to Catholicism later in life.  Gibson mentions it himself, but William James's discussion of conversion in The Varieties of Religious Experience seems to reflect a preference for the latter.  Peter Berger is quoted at the end of the piece as saying that "religion today is a choice, and we are all converts to one degree or another[.]"  Maybe that's right, though I wonder whether it might also be right to say that "choice" is a concept with many attendant and very different conceptions.  [x-posted CLR Forum]

Sunday, September 18, 2011

Archbishop Gomez on Immigration and much more

In late July, at the Napa Institute, Archbishop Gomez gave a wonderful lecture titled "Immigration and the 'Next America': Perspectives from Our History."  Situating the immigration debate within broader cultural shifts in American society and within American history, including its rich Catholic and Hispanic history, Archbishop Gomez encourages us to approach this issue as Catholics and not as Democrats or Republicans, liberals or conservatives.  He says:

Our culture pushes us to "privatize" our faith, to separate our faith from our life in society. We always have to resist that temptation. We are called to live our faith in our businesses, homes and communities, and in our participation in public life.

The essay is well worth the read!

 

 

Friday, September 16, 2011

Religion and Inequality

Political scientist Tobin Grant, who writes at Christianity Today Online, sums up interesting research he and others have done on the positive correlation between a nation's income inequality and its level of religious identification.  The CT post also links to the fuller research.  The U.S. fits the pattern because, although wealthier than economically advanced nations of secularized Europe, it has much higher income inequality (comparable to "Uganda, Jamaica, Cameroon, and Cote d'Ivoire") and much higher religious identification.

The research undercuts the claim that the poor seek the consolation of religion--and the claim that  becoming wealthy tends to make one less religious (because, say, one feels more self-sufficient).  "In unequal societies, the rich are also religious. By some measures, the wealthy grow more religious and the poor become less religious where there is higher inequality."

That is, neither do the wealthy across the board remain (or become more) religious: the wealthy in more unequal societies do so.  With the appropriate caveats about drawing clear conclusions from the data, Grant says "[o]ne possible explanation for this pattern" is that religions--some religions--justify the inequality:  "religions in unequal societies are more likely to seek out the rich young ruler, not the widow with only a few copper coins."

Tom

Christian Smith on "Liberal Whateverism"

My friend and colleague, Chris Smith, was the subject of a recent David Brook's op-ed, to which Marc linked recentlyHere's Chris, in Huffington Post, on the phenomenon of "liberal whateverism":

This outlook reacts against sectarian conflict by dramatically discounting the claims of religion. The more aggressive side of this view asserts that religion per se is pernicious and should be eliminated or radically privatized. The more accommodating side says religion is fine as a personal lifestyle commodity, but that religious inclinations are ultimately arbitrary and should not be taken too seriously. . . .

. . .  I think we need to reject both sectarian conflict and liberal whateverism and commit ourselves instead to an authentic pluralism. Genuine pluralism fosters a culture that honors rather than isolates and disparages religious difference. It affirms the right of others to believe and practice their faith, not only in their private lives but also in the public square -- while expecting them to allow still others to do the same. Authentic pluralism does not minimize religious differences by saying that "all religions are ultimately the same." That is false and insipid. Pluralism encourages good conversations and arguments across differences, taking them seriously precisely because they are understood to be about important truths, not merely private "opinions." It is possible, authentic pluralism insists, to profoundly disagree with others while at the same time respecting, honoring, and perhaps even loving them. Genuine pluralism suspects the multi-cultural regime's too-easy blanket affirmations of "tolerance" of being patronizing and dismissive. Pluralism, however, also counts atheist Americans as deserving equal public respect, since their beliefs are based as much on a considered faith as are religious views and so should not be automatically denigrated.

Oggi Si Mangia Di Magro

When I was a kid, Fridays were days when one did not eat meat -- fish was the order of the day, the idea being that it was a special day in which, for religious and cultural reasons, one was supposed to "mangiare di magro" -- to eat "lean" (and, especially for certain Fridays, to think "lean," penitential thoughts).  Beginning today, the Catholic Bishops in England and Wales have officially reinstituted the centuries-old practice of meatless Fridays.  Details here

UPDATE: Susan Stabile offers more thoughts here.

The Obama Administration's Brief in Hosanna-Tabor v. EEOC

I understand that the government’s role in litigation is to defend, well, the government. But the Obama Administration’s brief in Hosanna-Tabor v. EEOC (the upcoming Supreme Court term’s blockbuster ministerial exception case) goes beyond the narrow issue of whether the ministerial exception should apply to the facts of the case and takes the extravagant position that there is no general ministerial exception (no "categorical" or "prophylactic" rule, to use the brief's peculiar formulation) under the First Amendment’s religion clauses. (There’s been some speculation that the brief’s argument is limited to the ADA anti-retaliation claims of the employee, but it’s difficult to see why the logic of the brief’s argument is so limited.) As pointed out by Ed Whelan, this puts the Administration at odds not only with the U.S. Conference of Catholic Bishops, the Church of Jesus Christ of Latter-Day Saints, the Lutheran Church-Missouri Synod, and the Union of Orthodox Jewish Congregations, but also with (among others) the Episcopal Church, the Presbyterian Church (U.S.A.), the United Methodist Church, the United Church of Christ, the Evangelical Lutheran Church in America, the American Jewish Committee, the Union for Reform Judaism, the Muslim-American Public Affairs Council, United Sikhs, and the Society for Krishna Consciousness, all of which filed amicus briefs on behalf of Hosanna-Tabor arguing for a robust ministerial exception as a necessary component of religious freedom. (See especially the brief by our own Tom Berg and Rick Garnett, the brief by Christopher Lund for the Lutheran Church-Missouri Synod, the brief by Michael McConnell for a consortium of Protestant churches, and the brief by my former colleagues at Williams & Connolly for the USCCB, the LDS Church, the Orthodox Union, and the Episcopal Church.) Indeed, the Administration takes a position more hostile to religious freedom than the ACLU and Americans United for Separation of Church and State, which acknowledge the ministerial exception in their amicus brief but argue that it should not apply to cases in which the alleged discrimination or retaliation is unrelated to religion.

What remains of the right of religious groups to select their ministers? Don’t worry, the Administration says: 

Under different circumstances, a religious employer would be able to successfully invoke a freedom of association defense to application of the civil rights laws. The availability of such a defense provides a full response to petitioner’s concern that the operation of generally applicable employment discrimination laws “would prohibit many common religious practices,” including, for example, “the all-male clergy among Catholics and Orthodox Jews.” Pet. Br. 18. As an initial matter, it is unclear whether Title VII would permit claims challenging such gender-based qualifications because gender could well be considered a bona fide occupational qualification for such positions. See 42 U.S.C. 2000e2(e)(1); Dothard v. Rawlinson, 433 U.S. 321, 332-337 (1977). But assuming arguendo that the statute otherwise permitted such claims, religious employers could defend against them on the ground that compelled ordination of women would be impossible to square with their religious view that only men should occupy such roles. In light of the deeply embedded and long-standing nature of such ecclesiastical rules, the government interest in enforcement of anti-discrimination laws would necessarily give way. Cf. Dale, 530 U.S. at 656659 (state interest not sufficiently compelling to outweigh Boy Scouts’ right to shape message on homosexuality); see also Smith, 494 U.S. at 882 (“[I]t is easy to envision a case in which a challenge on freedom of association grounds would likewise be reinforced by Free Exercise Clause concerns.”). Brief for Federal Respondent, 31.

There’s a lot to say about this argument and much else in the brief, but I’ll make two points for now. First, if this is really EEOC’s position (it’s “unclear”) about the scope of the bona fide occupational qualification exception to a Title VII gender discrimination claim, I’d like to hear more from EEOC about how an all-male clergy requirement meets the prevailing (and ordinarily quite narrow) standard for a BFOQ (the cite to Dothard v. Rawlinson—a prison guard disparate impact case—doesn’t help much). Is EEOC's position that a religious employer doesn’t have a constitutional defense against a claim of gender discrimination in a ministerial employment decision, but the religious employer can self-define the qualifications for ministers in such a way that consideration of sex is essential to the employment function of a minister and thereby get the benefit of a BFOQ defense? And in what other contexts would that argument for a BFOQ pass the laugh test?

Second, there’s something striking (and downright odd) about an argument that the religion clauses of the First Amendment don’t protect the right of religious groups to select ministers, but the right of free association somehow does. I am all in favor of a robust freedom of association, but, as argued by John Inazu, current freedom of association doctrine rests on a tenuous constitutional basis somewhere amid freedom of speech. And while I agree with Dale, it’s remarkable that the Administration is arguing that a hotly contested decision that has been subject to substantial scholarly criticism somehow provides the authority for what remains of the freedom of the church with regard to selection of ministers. Alas, instead of a constitutional limitation on the power of the state to interfere in the ministerial employment decisions of religious bodies and rooted in nine centuries of Western political theory, the Administration's view implies that such freedom--in those rare instances where it exists at all--is merely the provisional outcome of weighing the state’s anti-discrimination interest against a religious institution's right to expressive association.

Tollefsen on human dignity and capital punishment

At Public Discourse, Chris Tollefsen has an essay that should -- given his treatment of the moral-anthropology question that is necessarily at the heart of any legal-theory enterprise -- be of interest.  Tollefsen argues, among other things, that what he calls the "Essential Dignity" view -- i.e., the view that human beings possess "essential, underived, or intrinsic dignity . . . in virtue of the kind of being they are" -- supports (and, if I read him correctly, requires) the conclusion:  "no intentional killing of human beings."

Chris is comfortable in action-theory waters that are too deep for me.  That said, it seems to me that the "no intentional killing, ever" rule requires a stylized definition of "intentional" -- one that does not include, say, shooting a charging enemy soldier (in, let's assume, the context of a just war) in the chest.  (The idea, as I understand it, is that a soldier does not, or need not, "intentionally" kill, because his or her "intent" may be, and should be, to disable, and not to kill.)  Also, it is not obvious to me that the Essential Dignity view necessarily includes or travels with a rule that it is per se wrong to intentionally kill a human being.  Tollefsen engages closely the claim that a human being may, by virtue of having lost or alienated his or her dignity, deserve to be killed and therefore may be killed.  But, could it be that a person may deserve to be killed, and therefore may be killed, without losing or alienating his or her essential dignity?  I have always appreciated the argument, in C.S. Lewis's little essay, The Humanitarian Theory of Punishment, that respect for the dignity of human beings should lead us to punish those (and only those) who deserve it.  (And so, again, the question is whether capital punishment a permissible sanction for those who deserve to be punished.)   

Like I said . . . deep waters!  (By the way, and in case it matters, unlike both Gov. Perry and Pres. Obama, I oppose capital punishment.)  And, I have tried to explore, in this paper, the implications for the capital-punishment debate of what Blessed Pope John Paul II called the "moral truth about the human person."