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.

Monday, December 12, 2011

Distributism

Rick raises several compelling questions concerning how contemporary and earlier advocacy on behalf of "distributism," as an alternative to both socialism and capitalism, should be approached and evaluated.  I don't know of any single author whose work has remotely begun to cover the field, but lawyer Christopher Ferrara has made many fine and sound contributions, the quality of which can be glimpsed in his recent essay here. Ferrara's observations about the nature of the *reasons* individuals and societies have to make the required transitions from virtually unbridled capitalism to distributism return us to those more funadmental questions (which I've been raising here on MOJ) concerning what happens when we mistakenly consider the Constitution -- rather than the divine natural law and the law of the Gospel -- to be the "supreme law of the land."  Again, my denying that the Constitution is the supreme law of the land does not commit me to "judicial activism" of the sort I'm sometimes accused of advocating. My views on what our federal judges, for example, are licensed to do is really quite strict and disciplined (cf. my disagreements with Hadley Arkes)!  The point is that recognizing the *truly* higher law for what it is calls the rest of the law into question, in a way that must be resolved *lawfully*, naturally.   

A NYC Pastor's Perspective on Being Excluded from Schoolrooms

This week the Supreme Court denied certiorari in the Bronx Household of Faith case, thereby allowing the New York City school board to single out religious worship services for exclusion from public school rooms open after hours to other community groups.  Christianity Today has published an an interesting perspective from a NYC evangelical pastor, whose church will now have to find a new meeting place, on how Christians should respond.  On the legal issues, Rick and I and others had filed a "Brief of First Amendment Scholars" (see here) supporting a cert grant, and school board's rule is irreconcilable with (among other things) Widmar v. Vincent, the case that Mike Paulsen has just reminded us was so crucial to development of the fundamental principle of "equal access" for religious activities.

Feast of Our Lady of Guadalupe

PRAYER OF HIS HOLINESS BENEDICT XVI 
BEFORE THE IMAGE OF OUR LADY OF GUADALUPE

Wednesday, 11 May 2005

Pope honours Our Lady of Guadalupe, prays for mothers

 

Holy Mary, who under the title of Our Lady of Guadalupe are invoked as Mother by the men and women of Mexico and of Latin America, encouraged by the love that you inspire in us, we once again place our life in your motherly hands.

May you, who are present in these Vatican Gardens, hold sway in the hearts of all the mothers of the world and in our own heart. With great hope, we turn to you and trust in you.

Hail Mary, full of grace, 
the Lord is with thee, 
blessed art thou among women and blessed is the fruit of thy womb, Jesus. 
Holy Mary, Mother of God, 
pray for us sinners, 
now and at the hour of our death. Amen. 
Our Lady of Guadalupe, 
Pray for us.

"The Least Evil Option"

Fr. Wilson Miscamble (Notre Dame), my friend and colleague, has posted a response to Chris Tollefsen, and a "defense of Harry Truman," over at Public Discourse.  Fr. Miscamble writes, among other things, the following:

. . . I suggest that, in retrospect and within the privacy of his heart, Truman likely understood that he had been forced by necessity to enter into evil. And so, I argue in my book, he had. He ordered the bombing of cities possessing significant military-industrial value, but in which thousands of noncombatants, among them the innocent elderly and the sick, women and children, were annihilated. Evaluated in isolation, each atomic bombing was a deeply immoral act deserving of condemnation. The fact that the bombings entailed the least harm of the available paths to victory, and that it brought an end to destruction, death, and casualties on an even more massive scale, cannot obviate their evil; it should, however, satisfy those who accept a utilitarian approach to morality, in which good ends can justify certain immoral means. I am not in that number.

Yet I remain sympathetic in evaluating Truman and his decision. . . .

Review of Taylor & Maclure, "Secularism and Freedom of Conscience"

Ruth Abbey's (Notre Dame) review of Charles Taylor's & Jocelyn Maclure's "Secularism and Freedom of Conscience" is available here, at Notre Dame Philosophical Reviews.  The conclusion:

This short work offers a clear and accessible account of some of the central issues at stake in theoretical and practical debates about the relationship between religion and politics in contemporary western societies. One question I was left with at the end, however, was who its intended audience is. Because A Secular Age had little to say explicitly about political philosophy, this work might satisfy some residual curiosity about Taylor's views on straightforwardly political questions that fall within its orbit. Secularism and Freedom of Conscience traverses a lot of ground in very short space, which prevents it from going into great detail on any single topic. Its engagement with the vast scholarly literature on the topics it touches on is light, suggesting that its primary audience is newcomers to this topic, and perhaps the elusive general reader, rather than academic researchers in this field.

Some recent posts about "Distributism"

Here's Thaddeus Kozinski; Joe Carter; John Couretas; and Patrick Deneen.  Read 'em all. 

I'm really torn -- or maybe just mixed up -- about "distributism," in many of the same ways I'm torn (or mixed up) about "new urbanism" and the "slow food" movement.  I am attracted to the aesthetics, and even to the underlying anthropology, but put off by the lack of interest these ideas' advocates often seem to display with respect to details about transitions, legal structures, practicalities, coercion, and costs.  I love Chesterton and Berry and all that but, dang it, markets and incentives and trade-offs are (this side of Heaven) permanent realities.  What I really appreciate is when I read someone who's working on what we might call "applied" and "modest" distributism or new urbanism, someone who proposes reasonably efficient and realistic "nudges" we might use to help people move along the trajectory of real flourishing.      

Fed Soc Faculty Conference at AALS Annual Meeting

For many years, the Federalist Society has held a one-day Faculty Conference that coincides with the Annual Meeting of the AALS.  Information on this year's conference -- about the speakers and topics, and also about how to register -- is available here.

Sunday, December 11, 2011

Public Life and Professions of Faith

 

Kathleen Kennedy Townsend has recently published a short essay in The Atlantic [HERE] entitled “Out of Step With the Flock: Bishops Far Behind on Birth Control Issues.” She is highly critical of the U.S. bishops for not taking a bold stand on economic matters, and she intensifies her caustic critique by arguing that they have “not infrequent disdain for the faithful.” Her bone of contention in this essay is this: the U.S. bishops do not agree with her on the stance they have taken regarding the impending requirements that all employers provide health care coverage for “reproductive health services.” Two points need to be made here at this stage: the first is that Ms. Kennedy Townsend demonstrates her unfamiliarity with the many public policy issues with which the bishops have spoken with strength and conviction on the pressing social and economic issues of the day that intersect Catholic social thought. The second is that she assumes something that cannot be assumed by anyone: her belief that she speaks for all women, especially Catholics, on an issue of morality.

She makes a particularly remarkable claim by stating that:

With yesterday, the 8th day of December, marking the Feast of the Immaculate Conception – which refers to Mary’s being conceived free of original sin, not the conception of Jesus – it would be wise of the bishops to realize that the conception of Mary by her human parents, Saint Joachim and Saint Anne, is a reminder that woman [sic] are people of conscience and can decide for themselves when it is best to conceive. In fact, birth control use is universal, even among Catholic women: 98 percent of sexually active Catholic women use birth control during their reproductive years.

Does she mean to suggest that Joachim and Anne were forward thinking people like herself who know how to use family planning? When Ms. Kennedy Townsend contends that “women are people of conscience and can decide for themselves when it is best to conceive,” she fails to note two important Catholic teachings. The first is that conscience is not doing that which you simply want to do on your own accord. This would be a perilous excuse for license. Conscience is that ability with objective reason to make the election between good and avoid that accords with recognition of the moral quality of an act in accordance with divine law. While Ms. Kennedy Townsend’s view coincides with that of Planned Parenthood and NARAL/ProChoice, it does not complement or coincide with the teachings of the Church. The well formed conscience is that place within the human person where one “detects a law which he does not impose upon himself, but which holds him to obedience.”  [Gaudium et Spes, N. 16] The second failure she demonstrates is her lack of familiarity with the Church’s teachings that parents have the responsibility to “space the birth of their children” and it is their duty to ensure that the decisions made are “not motivated by selfishness” but in conformity with objective criteria of morality. [Catechism of the Catholic Church, N. 2368] These criteria for spacing children’s births, moreover, cannot include those “methods of birth control which are found blameworthy by the teaching authority of the Church in its unfolding of the divine law.” [Gaudium et Spes, N. 51]

Ms. Kennedy Townsend’s essay does not reflect these teachings of the Church to which she affirms she has been a member all her “lifelong.” Yet she deems herself competent to chastise “conservative bishops” who conspire “with congressional [sic] Republicans to undermine” the promises of the new health care law. She is offended that the bishops want the conscience protections afforded to “religious employers” extended to all institutions that bear the moniker “Catholic.” She does not take stock of the fact that any institution which claims to be Catholic is finding it more and more difficult to be faithful to its identity as Catholic because of the very pressures from the state which she wants the Church to embrace.

A major justification for her withering criticism of the bishops is that they are “out of step” with their flock. For her, what is good or what is correct is determined by majority vote as she argues with her illustration of the Papal Commission on Birth Control.

Another argument upon which she relies is that “Church-affiliated institutions employ millions of non-Catholics who signed on to earn a paycheck.” For her, this means that these valued employees have the final say in determining what their Catholic institution employer can and cannot do on moral issues. Again, this is perilous and faulty reasoning on her part. She suggests that it is the non-Catholic employee who can determine what the Catholic employer can and cannot do on matters dealing with serious moral issues. A grave problem with her justification is the further claim that there is no legal justification for the bishops’ “ethically dubious” position. If that is indeed the case, which it is not, then let’s get ready for the hurdles that will be used to take the offenders to their earthly justice that she wishes to see dispensed.

A final point needs to be made today about Ms. Kennedy Townsend’s appeal. She further suggests that the Pontifical Council for Justice and Peace’s Note, “Reform of the International Financial System” offers clear-sighted instruction from the Vatican from which the American bishops could profit. Of course, if she thought about the impact of this remark for a moment, she would realize that they, the bishops, in fact follow the Universal Church’s clear-sighted instruction on all moral issues including the ones on which she censures them.

While Ms. Kennedy Townsend is no longer a holder of public office, she still wields some influence in the forums of public life. She is entitled to do this. But I add a caveat: when she critiques others, especially those with whom she disagrees, she should be better prepared with her facts and her understanding of the Church and the Church’s teachings. Otherwise the service she intends to provide becomes a disservice to all.

 

RJA sj

Saturday, December 10, 2011

Great Britain's Stand for Subsidiarity

I've noted before that many of the founders of the European Union were steeped in Catholic social thought (even borrowing the concept of subsidiarity from CST and making it into a constitutional norm in the EU), and the Vatican has long been an advocate of European integration. But the lack of an intelligible and enforceable principle of subsidiarity in the EU has resulted in ever-increasing bureaucratic centralization in Brussels and Strasbourg over the past several years, a trend that Britain has now called into question with Prime Minister David Cameron's veto of a proposed EU treaty. While Cameron probably hasn't discovered a newfound enthusiasm for Pius XI and was acting to protect British economic interests, Niall Ferguson argues here that Cameron made the right decision: 

So it is not that British policy has dramatically changed. The real historical turn is the one now being taken by the 17 euro zone members and the six non-euro states that have chosen to follow them. For there should be no doubt in anyone’s mind that what they have just agreed to do is to create a federal fiscal union. Moreover, it is a fundamentally flawed one. The only surprising thing is that so few other non-euro countries—Sweden, maybe the Czechs and Hungarians—have joined Britain in expressing reservations. I quite see why countries with the euro are prepared to give up their fiscal independence to avert a currency collapse. But what on earth is in this for the others?

....

“Eurozone Deal Leaves Britain Isolated” trumpets the Financial Times, for many years an ardent proponent of monetary union. But if David Cameron can succeed in isolating Britain from the disaster that is unfolding on the continent, he deserves only our praise. For once the old joke—“Fog in the Channel: Continent Cut Off”—seems applicable. There is now a Depression on the other side of the channel, and it is indeed the continent that is cutting itself off—from sane economic policies.

Karl Barth, the Constantinian Illusion, and Christian Hope

The great Swiss Reformed theologian Karl Barth died on this date in 1968, so here's a mighty passage from the Church Dogmatics to serve as a tonic for ecclesial, political, economic, or academic despair:
 
What is hope, and what does it mean for the Christian who, since Jesus Christ has not yet spoken His universal, generally perceptible and conclusive Word, finds himself in that dwindling and almost hopeless minority as His witness to the rest of the world? If the great Constantinian illusion is now being shattered, the question becomes the more insistent, though it has always been felt by astute Christians. What can a few Christians or a pathetic group like the Christian community really accomplish with their scattered witness to Jesus Christ? What do they really imagine or expect to accomplish in the great market, on the battlefield or in the great prison or madhouse which human life always seems to be? "Who hath believed our report?  and to whom is the arm of the Lord revealed?" (Isaiah 53:1). And what are we to say concerning the countless multitudes who either ante or post Christum natum have had no opportunity to hear this witness? The Christian is merely burying his head in the sand if he is not disturbed by these questions and does not find his whole ministry of witness challenged by them. He buries it even more deeply if in order to escape them, forgetting that he can be a Christian at all only as a witness of Jesus Christ, he tries to retreat into his own faith and love or that of his fellow Christians. Nor is there any sense in trying to leap over this barrier with the confident bearing of a Christian world conqueror. The meaningful thing which he is permitted and commanded and liberated to do in face of it is as a Christian, and therefore unambiguously and unfalteringly, to hope, that is, in the face of what seems by human reckoning to be an unreachable majority to count upon it quite unconditionally that Jesus Christ has risen for each and every one of this majority too; that His Word as the Word of reconciliation enacted in Him is spoken for them as it is spoken personally and quite undeservedly for him; that in Him all were and are objectively intended and addressed whether or not they have heard or will hear it in the course of history and prior to its end and goal; that the same Holy Spirit who has been incomprehensibly strong enough to enlighten his own dark heart will perhaps one day find a little less trouble with them; and decisively that when the day of the coming of Jesus Christ in consummating revelation does at last dawn it will quite definitely be that day when not he himself, but the One whom he expects as a Christian, will know how to reach them, so that the quick and the dead, those who came and went both ante and post Christum, will hear His voice, whatever its signification for them (John 5:25). This is what Christian hope means before that insurmountable barrier. This is what the Christian hopes for in face of the puzzle which it presents. But the Christian has not merely to hope. He has really to show that he is a man who is liberated and summoned, as to faith and love, so also to hope. And if he really hopes as he can and should as a Christian, he will not let his hands fall and simply wait in idleness for what God will finally do, neglecting his witness to Christ. On the contrary, strengthened and encouraged by the thought of what God will finally do, he will take up his ministry on this side of the frontier. He will thus not allow himself to be disturbed by the questions of minorities or majorities, of success or failure, of the probable or more likely improbable progress of Christianity in the world. As a witness of Jesus Christ, he will simply do - and no more is required, though this is indeed required - that which he can do to proclaim the Gospel in his own age and place and circle, doing it with humility and good temper, but also with the resoluteness which corresponds to the great certainty of his hope in Jesus Christ.
 
Karl Barth, Church Dogmatics , IV/3, §73