It is a sign of maturity that the Mirror of Justice has reached a point in its history in which we are circling back to earlier discussions from several yearas ago. In reading recent posts about the Pro-Life movement and whether it is too strongly connected to conservative or Republican politics and should instead become more affiliated with liberal or Democratic politics, I was reminded of earlier discussions along these lines. Way back in May of 2005, shortly after attending a Pro-Life Progressive symposium here at the University of St. Thomas School of Law, I posted my thoughts along with those of several others.
In the hope that what I said then may have some continuing relevance for today's discussion, I share a few excerpts from my 2005 post titled "Pro-Life Progressivism: Avoiding the Pitfalls" (the whole post is available here):
As an observer of the Pro-Life Progressive discussion, I was a
sympathetic outsider looking in with great interest. I am sympathetic
in that I too yearn for a pro-life witness from the political left. I
remain an outsider in that I do not agree with every element of the
progressive agenda, at least on the means to the ends * * *. I look inside with great interest because of my fervent wish
for an ever-larger and diverse witness for life; indeed, because of the
powerful message for life that would be sent thereby, I’d be tempted to
vote for a genuinely pro-life liberal candidate for public office—even over a conservative of comparable pro-life credentials—despite my
doubts about other elements of the progressive platform.
Having thus acknowledged my perspective, and having listened
carefully to (most of) the presentations at the symposium, I thought I
identified three potential dangers that could undermine Pro-Life
Progressivism as an authentic pro-life movement.
First, a few participants exhibited an unseemly tendency to
depreciate the value of electing pro-life candidates to office and to
denigrate pro-life accomplishments. The argument that pro-life
candidates (at least of the Republican variety) abandon the
anti-abortion cause once elected to office is overstated, objectively
false, begs the question of why offering progressive pro-life candidates
would serve any practical purpose, and often appears to be a
thinly-veiled excuse for ignoring even the most egregious of
pro-abortion records of liberal candidates so as to justify casting
votes for them.
One of course can and should criticize Republican leaders who
sometimes fail to place pro-life issues on the front-burner and fully
exercise the bully pulpit of public office to speak against the culture
of death. But one legitimately can urge even more attention to the
scourge of abortion without denigrating hard-fought victories for the
pro-life movement. We must recognize that the battle for life will be
won mostly through small successes that build upon each other.
At the
federal level, pro-life members of Congress have been able to enact a
prohibition on the grisly practice of partial birth abortion and
continue to fend off the persistent efforts of the pro-choice left to
subsidize abortion-on-demand through federal spending. * * * At the state level, pro-life legislative
successes continue to multiply, from ensuring greater information to
women in trouble, protecting the rights of parents, and providing easier
access to alternatives to abortion. While these pro-life successes are
not yet the bountiful harvest for which we all pray, the basket is by
no means empty.
If those who claim to be building a pro-life progressive movement
belittle the hard work of those who for many long years have labored
hard in the political vineyard and reaped many victories over the
concerted opposition of the party that claims to speak for progressives,
this newly-formed progressive voice simply will not be in solidarity
with the pro-life movement as a whole.
Second, while some participants persuasively argued that Pro-Life
Progressives are better situated to seek common ground with skeptics on
the question of life, including those on the pro-choice side, such fora
for dialogue must be entered with caution lest they be abused by
abortion advocates who disguise themselves or their agenda. The
dialogue must be conducted with integrity and always with fidelity to
the cause of life. * * *
More than one participant in the symposium emphasized that, while
constituting a welcome beginning, changes in the rhetoric on abortion by
certain liberal political figures must be accompanied by meaningful
action. While the action that should be expected was not made concrete
(which brings me to my third concern below), it at least indicated that
more than one member of the Pro-Life Progressive movement is attuned to
the risk I describe above.
Third, the Pro-Life Progressive movement, while presenting itself
both as a sincere opponent of abortion and broadly progressive on
economic and international matters, seemed rather short on specifics
about how to advance the pro-life cause beyond words. Indeed, more than
one speaker raised doubts about whether anti-abortion legislation—with
the eventual goal of prohibiting any violent taking of unborn human
life—ought to be pursued.
All of us agree that the culture must be
changed if we are to realize our hope of one day placing abortion
alongside slavery and genocide as universally-acknowledged intrinsic
evils. Moreover, some of us will be called to devote our time and
talents to reaching hearts and minds, rather than to engaging with
politicians and judges. But the pro-life movement as a whole cannot
stand by and fail to take such action as is possible now. We must save
as many lives as we can today, even if limited restrictions on abortion
and enhancement of alternatives are all that can be legislatively
achieved at present.
Interestingly, the same symposium participants who were quick to
dismiss pro-life Republicans as inconsequential based upon a supposedly
inadequate legislative agenda were also the ones who seemed most
reluctant to forthrightly endorse legal constraints on abortion as part
of the new movement’s platform. If this cognitive dissonance is rooted
in an underlying timidity about pro-life politics or an unwillingness to
unite with other pro-life activists across the political spectrum in
seeking always to accomplish whatever is politically possible, then it
will be difficult for this new movement to sustain itself as truly
pro-life as well as progressive. * * *
I do not mean to suggest that any one of the three dangers mentioned
above, much less all three in concert, were manifested in a dominating
way at the Pro-Life Progressivism symposium. But each emerged from time
to time. Nor do I think it inevitable that the Pro-Life Progressive
movement will succumb to these temptations. Any nascent political
movement will be less than fully formed and internally coherent at its
birth. Mapping the pitfalls, so that they may be avoided, ought to be
welcomed as advancing the cause.* * *
If Pro-Life Progressivism is truly to be a fourth political
alternative in the country (along with conservatism, libertarianism, and
secular liberalism), then it must be authentically pro-life as well as
genuinely progressive. Should it succeed in becoming a viable part of
the political landscape, while remaining true to its pro-life soul, we
all would have great cause to rejoice.
Ronald Dworkin died last Thursday. I
met him twice, but I doubt he could have picked me out of a lineup.
Nonetheless, he had an enormous influence on my scholarship. Simply put, much
of my scholarship has been directed against his. I do not mean this as a cheap
shot. Dworkin was a scholarly giant writing squarely in the Kantian tradition,
but I rebel against that tradition, or more precisely, a significant part of
it.
It was Dworkin who first drew me
into an interest in political theory. He wrote an essay on liberalism many
decades ago in which he argued that liberalism was committed to the view that
the state should be neutral about the good life. My reaction was that this was
not the liberalism I knew and appreciated. The state had never been neutral about
the good life, never would be, and never should be. Even more important
Dworkin’s thesis (which was qualified and refined over the years) was set in a
larger theory claiming that moral and political questions could all be resolved
by reference to fresh deductions from a small set of premises. My reaction has
been that free speech, for example, clashes with too many other values and
interests to hope or expect that the right answer to these problems could ever
be found by deductions from a small set of premises. To be fair, Dworkin
conceded that a right like freedom of speech could be limited if it conflicted
with another right, but the criteria for determining the content of a right
were too elusive for my tastes. Over the years, I realized that I had a temperamental
objection to grand theory. It was not just that I thought grand theory was
pragmatically unrealistic. I did not want grand theory to succeed. It was too
simple; too pat; too abstract; too rationalistic; and it insufficiently appreciated the passion, the earthiness, the romance and mystery of
moral life.
At the same time, I realized that
those who write in the tradition of grand theory have reasons of temperament to
want it to succeed that go beyond pragmatic considerations, and I wrote about
that (The First Amendment, Democracy, and Romance, Ch. 4) after giving a talk
at NYU, the home of grand theory either in the realm of political theory like
Dworkin or in the realm of ACLU free speech liberalism (NYU was the ACLU’s most
important law school home many decades ago). My talk was not well developed,
but the defensive reaction I received even from ordinarily gentle folk who
fiercely resisted my psychological speculation showed me I was on to something.
(In fairness, Larry Sager was enormously helpful).
If I disagreed with Dworkin on much
and am grateful that he inspired me to fight against him, I agreed with much as
well. One does not have to be a devotee of grand theory to recognize the
importance of equality, dignity, and autonomy, and Dworkin championed all three
in eloquent and thoughtful ways. Similarly there are many areas where
instrumental arguments are out of place, as Dworkin so frequently argued. Even
more important, Dworkin brilliantly argued that law is not just a set of rules,
but policy arguments and moral principles are a part of law. Indeed, as I interpret
him, Dworkin claimed that there was always a right answer not only to legal problems, but also to moral and
political problems. This was the part of his theory that I most appreciate: moral
skepticism is not an appropriate foundation for liberalism; it is an incoherent
and psychopathic basis for law and politics. I think this is an area
where Mill and Dworkin (and Catholic social theory) come together though Mill laid more stress on our
fallibility in determining what the right answer might be.
Dworkin was an eloquent champion of
civil liberties and a public intellectual. He was an important moral,
political, and legal theorist. He is gone. But he has left a body of work that
will be influential for a long time to come.
That's the title of an excellent piece in today's New York Times by Stephanie Coontz. In a few short paragraphs, she paints a vivid picture of how starkly the contemporary American workplace differs from much of the rest of the world, in ways that directly undermine the Church's views on the place of the family as society's most effective 'school of the virtues." And, as she makes clear, this is no longer (if it ever was) just a "woman's issue."
In today’s political climate, it’s startling to remember that 80 years
ago, in 1933, the Senate overwhelmingly voted to establish a 30-hour
workweek. The bill failed in the House, but five years later the Fair
Labor Standards Act of 1938 gave Americans a statutory 40-hour workweek.
By the 1960s, American workers spent less time on the job than their
counterparts in Europe and Japan.
Between 1990 and 2000, however, average annual work hours for employed
Americans increased. By 2000, the United States had outstripped Japan —
the former leader of the work pack — in the hours devoted to paid work.
Today, almost 40 percent of men in professional jobs work 50 or more
hours a week, as do almost a quarter of men in middle-income
occupations. Individuals in lower-income and less-skilled jobs work
fewer hours, but they are more likely to experience frequent changes in
shifts, mandatory overtime on short notice, and nonstandard hours. And
many low-income workers are forced to work two jobs to get by. When we
look at dual-earner couples, the workload becomes even more daunting. As
of 2000, the average dual-earner couple worked a combined 82 hours a
week, while almost 15 percent of married couples had a joint workweek of
100 hours or more.
Astonishingly, despite the increased workload of families, and even
though 70 percent of American children now live in households where
every adult in the home is employed, in the past 20 years the United
States has not passed any major federal initiative to help workers
accommodate their family and work demands. The Family and Medical Leave
Act of 1993 guaranteed covered workers up to 12 weeks unpaid leave after
a child’s birth or adoption or in case of a family illness. Although
only about half the total work force was eligible, it seemed a promising
start. But aside from the belated requirement of the new Affordable
Care Act that nursing mothers be given a private space at work to pump
breast milk, the F.M.L.A. turned out to be the inadequate end.
Meanwhile, since 1990 other nations with comparable resources have
implemented a comprehensive agenda of “work-family reconciliation” acts.
As a result, when the United States’ work-family policies are compared
with those of countries at similar levels of economic and political
development, the United States comes in dead last.
Out of nearly 200 countries studied by Jody Heymann, dean of the school
of public health at the University of California, Los Angeles, and her
team of researchers for their new book, “Children’s Chances,” 180 now
offer guaranteed paid leave to new mothers, and 81 offer paid leave to
fathers. They found that 175 mandate paid annual leave for workers, and
162 limit the maximum length of the workweek. The United States offers
none of these protections.
A 1997 European Union directive prohibits employers from paying
part-time workers lower hourly rates than full-time workers, excluding
them from pension plans or limiting paid leaves to full-time workers. By
contrast, American workers who reduce hours for family reasons
typically lose their benefits and take an hourly wage cut.
Is it any surprise that American workers express higher levels of
work-family conflict than workers in any of our European counterparts?
Or that women’s labor-force participation has been overtaken? In 1990,
the United States ranked sixth in female labor participation among 22
countries in the Organization for Economic Cooperation and Development,
which is made up of most of the globe’s wealthier countries. By 2010,
according to an economic research paper by Cornell researchers Francine
Blau and Lawrence Kahn, released last month, we had fallen to 17th place,
with about 30 percent of that decline a direct result of our failure to
keep pace with other countries’ family-friendly work policies. American
women have not abandoned the desire to combine work and family. Far
from it. According to the Pew Research Center, in 1997, 56 percent of
women ages 18 to 34 and 26 percent of middle-aged and older women said
that, in addition to having a family, being successful in a high-paying
career or profession was “very important” or “one of the most important
things” in their lives. By 2011, fully two-thirds of the younger women and 42 percent of the older ones expressed that sentiment.
Nor have men given up the ideal of gender equity. A 2011 study by the Center for Work and Family
at Boston College found that 65 percent of the fathers they interviewed
felt that mothers and fathers should provide equal amounts of
caregiving for their children. And in a 2010 Pew poll,
72 percent of both women and men between 18 and 29 agreed that the best
marriage is one in which husband and wife both work and both take care
of the house.
BUT when people are caught between the hard place of bad working
conditions and the rock wall of politicians’ resistance to
family-friendly reforms, it is hard to live up to such aspirations. The
Boston College study found that only 30 percent of the fathers who
wanted to share child care equally with their wives actually did so, a
gap that helps explain why American men today report higher levels of
work-family conflict than women. Under the circumstances, how likely is
it that the young adults surveyed by Pew will meet their goal of sharing breadwinning and caregiving?
[University of St. Thomas law prof Chuck Reid has asked me to post this statement, and I am happy to do so.]
In my
abortion columns written over the last five months, I have made it clear that I
do not disagree in principle with the propositions that life begins at
conception and that it is deserving of legal protection. My quarrels have been, rather, with the
political strategies of the pro-life movement, as it has evolved over the last
four decades.
Many readers
have noticed this. A commenter on one my
Huffington Post columns observed (I paraphrase): Reid's proposal to cooperate on a shared
agenda with the left to reduce the rate of abortion is probably the only way
forward for the pro-life movement. But
this observer, who acknowledged that he/she was pro-choice, continued by noting
that the pro-life movement would never follow.
And then there were the editors at the Italian newspaper, La Stampa,
who profiled my work in an article entitled "Changing Strategy on the
Culture of Life." The editors
certainly understood my work to speak to strategy, not principle. So, let's be clear upfront, my concern is
centered in the world of prudential judgment, it is a matter of how to succeed
given today's political realities. It is
not an argument over first principles.
As I have made very clear, the pro-life movement should be about saving
lives in the here and now.
I have known
women who have experienced the tragedy of abortion. There was the Jewish woman who received the
grim news early in her pregnancy that her child was anacephalic -- developing
without a head. The child could be expected
to survive no more than a few hours post partum, if that. She was devastated and looked to the
teachings of her faith which made it clear to her lights that abortion was
recommended in such extreme cases to limit needless suffering. And then there were the Catholic women,
several of them, I became acquainted with during my service as a matrimonial
judge. None of them wanted to have an
abortion. But they were lonely, desperate,
their spirits crushed by boyfriends and families who abandoned them. Alone, lacking financial and emotional
resources, they chose a solution for which they were truly sorry but which
seemed inevitable at the time.
These vivid
life experiences have taught me that the common denominator to the choice to
have an abortion is desperation. I have
yet to meet a woman who chose abortion to satisfy some desire for greater
material resources. I am sure there are
some who decide that they will never get that Mercedes Benz if they have a
hungry mouth to feed, but those women are few in number. Desperation, hopelessness, a fear of being
left alone in the world without means of assuming the responsibilities of
childcare -- these are the great causes of abortion. Individual pro-lifers, and organizations such
as pro-life pregnancy centers to which individuals devote their time, have
recognized this, to their great credit.
But the political strategy of the pro-life movement has failed to
recognize it, and indeed increasingly stands in the way of it.
Our Board of Trustees voted unanimously yesterday to select Dr. Julie Sullivan, currently Provost at the University of San Diego, as our new president. You can see read more about her here, here, and here.
I was a member of her Search Committee. Out of a deep and wide pool, she was a true stand-out in every way, and I couldn't be more thrilled that she is joining us.
She will be our first lay president and, obviously, will provide us with a blast of the 'feminine genius.' I liked her remarks on this at the press conference:
"I'm sure many of you are wondering, What does this mean? How will
this be different? Should we be scared?" Sullivan said. "I believe my
appointment reflects the sign of the times. ... the board sought to
broaden their pool of candidates to all qualified Roman Catholics."
"In my view, the board's decision was a reflection of their
recognition that universities are very complex organizations today. And
finding the best candidate to lead one requires a broad pool."
Here was an interesting statistic from the St. Paul Pioneer Press's coverage:
Baenninger said
lay leaders have been replacing clergy as top administrators of Catholic
universities in Minnesota and beyond. Of the 17 members of the
Minnesota Council of Private Colleges, three are led by women, and two
of those are Catholic institutions.
According to the Association of Catholic Colleges and
Universities, such institutions are ahead of the curve nationally when
it comes to female top leadership, as well. Among the 194 members of the
association, almost 35 percent have female presidents, compared with
about 26 percent of all colleges and universities.
Perhaps it's time for me to update my 2007 article, What Catholic Law Schools could Learn from Harvard about Women, in which I argue that Catholic teachings support measures to support more women to stay in academia. Or maybe someone's been reading that article?
Via Larry Solum, I learn the news that the important philosopher of law and politics, Ronald Dworkin, has passed away. I only met Professor Dworkin one time, in a law and philosophy class at Columbia co-taught by Professors Jeremy Waldron and Joseph Raz (it was a fun class). Professor Dworkin was the first in a series of guest presenters, and I distinctly remember Professor Waldron telling the class before his arrival, "Remember, we don't want to argue with Professor Dworkin; we want to understand him." He presented an early draft of a paper of what was to become a chapter in "Is Democracy Possible Here? Principles for a New Political Debate." My memory is that he was as fine a parser and distinguisher of factual situations as I have seen.
Professor Dworkin was also a superb writer. Everyone writes differently, and for different reasons, but much of my own writing is generated, propelled, and sustained as a series of reactions or disagreements. I intend it as a genuine tribute of respect to Professor Dworkin that his writing provoked, and still provokes, strong reactions in me. I can think of no better example of the power of his writing to elicit such a reaction than the following passage:
It is in the nature of legal interpretation—not just but particularly constitutional interpretation—to aim at happy endings. There is no alternative, except aiming at unhappy ones. . . . Telling it how it is means, up to a point, telling it how it should be. . . . That is a noble faith, and only optimism can redeem it.
Freedom's Law: The Moral Reading of the American Constitution.
In meeting for the last time with his priests today -- the clergy of the Diocese of Rome -- Pope Benedict offered a lengthy impromtu reflection on the Second Vatican Council that is well worth reading. (Available here).
There are many highlights here as he talks about the subject of each of the major documents of the Council: the reform of the liturgy (which he sees as significant in that it was the first act of the Council -- putting God and the worship of God first); completing the work of Vatican Council I in setting forth a broader and more complete ecclesiology; the primacy of scripture and the relationship between scripture and tradition; engagement with the modern world as "our responsibility for the society of tomorrow and the responsibility of the Christian before eternity," and the commitment to ecumenism and the Church's relationship with Judaism and other world religions.
It is all very much worth reading. I was struck, however, by these concluding thoughts:
I would now like to add yet a third point: there was the Council of the Fathers - the true Council - but there was also the Council of the media. It was almost a Council in and of itself, and the world perceived the Council through them, through the media. So the immediately efficiently Council that got thorough to the people, was that of the media, not that of the Fathers. And while the Council of the Fathers evolved within the faith, it was a Council of the faith that sought the intellectus, that sought to understand and try to understand the signs of God at that moment, that tried to meet the challenge of God in this time to find the words for today and tomorrow. So while the whole council - as I said - moved within the faith, as fides quaerens intellectum, the Council of journalists did not, naturally, take place within the world of faith but within the categories of the media of today, that is outside of the faith, with different hermeneutics. It was a hermeneutic of politics. The media saw the Council as a political struggle, a struggle for power between different currents within the Church. It was obvious that the media would take the side of whatever faction best suited their world. There were those who sought a decentralization of the Church, power for the bishops and then, through the Word for the "people of God", the power of the people, the laity. There was this triple issue: the power of the Pope, then transferred to the power of the bishops and then the power of all ... popular sovereignty. Naturally they saw this as the part to be approved, to promulgate, to help. This was the case for the liturgy: there was no interest in the liturgy as an act of faith, but as a something to be made understandable, similar to a community activity, something profane. And we know that there was a trend, which was also historically based, that said: "Sacredness is a pagan thing, possibly even from the Old Testament. In the New Testament the only important thing is that Christ died outside: that is, outside the gates, that is, in the secular world". Sacredness ended up as profanity even in worship: worship is not worship but an act that brings people together, communal participation and thus participation as activity. And these translations, trivializing the idea of the Council, were virulent in the practice of implementing the liturgical reform, born in a vision of the Council outside of its own key vision of faith. And it was so, also in the matter of Scripture: Scripture is a book, historical, to treat historically and nothing else, and so on.
And we know that this Council of the media was accessible to all. So, dominant, more efficient, this Council created many calamities, so many problems, so much misery, in reality: seminaries closed, convents closed liturgy trivialized ... and the true Council has struggled to materialize, to be realized: the virtual Council was stronger than the real Council. But the real strength of the Council was present and slowly it has emerged and is becoming the real power which is also true reform, true renewal of the Church. It seems to me that 50 years after the Council, we see how this Virtual Council is breaking down, getting lost and the true Council is emerging with all its spiritual strength. And it is our task, in this Year of Faith, starting from this Year of Faith, to work so that the true Council with the power of the Holy Spirit is realized and Church is really renewed. We hope that the Lord will help us.
I, retired in prayer, will always be with you, and together we will move ahead with the Lord in certainty. The Lord is victorious. Thank you.
I have no doubt that the calamaties that Benedict mentions -- "seminaries closed, convents closed, liturgy trivialized" -- have causes well beyond how the Council was reported in the media (even as the media -- including members of the Church herself -- surely contributed to this), and I do not doubt that Benedict knows this too. Still, I am struck by how -- fully fifty years after the Council -- the media's "hermenutic of politics" is in almost every instance the exclusive lens through which Benedict's resignation and the upcoming conclave are presented. The media often caricatures the Church as an institution hide-bound by tradition. It would seem, however, that this more aptly describes the media's reporting of Church affairs.
I would have written this in the comment box at Mirror of Justice, but it appears to be closed.
Archbishop Aymond's letter, which you posted on Mirror of Justice, reflects the long-standing interpretation of the law of abstinence, which is that "meat" is the flesh of a warm-blooded, terrestrial member of the kingdom Animalia. See 1983 CIC c. 1251 ("abstinence from meat"). Eggs, milk, and dairy products are well known as falling outside the scope of "meat." Likewise, we tend to describe those things that aren't "meat," at least colloquially, as "fish." So mollusks and fish are in on days of abstinence.
But the traditional rule has always, or at least long, been that the flesh cold-blooded animals, at least aquatic cold-blooded animals, doesn't count as "meat." Some people on the internet cite Paul VI's constitution Paenitemini for this principle, but it's not there. The origins of the distinction are obscure, at least to me (that is, I haven't looked for them very hard). I do know that there are additional oddities, such as the tradition that capybara is not "meat," apparently predicated on a mixture of food scarcity in certain regions of South America and a rather loose grasp of zoology by some early-modern curial officials.
Enjoy your frog legs,
Paul Krog Nashville, TN
Note: Thanks Paul. I'm not sure why the comments appear closed.
Andreas Widmer has an insightful analysis suggesting that Benedict completed the work of JPII and then laid the groundwork for the New Evangelization, realizing that that project should be headed by someone else. Here is the conclusion:
The timing he chose is greatly important. If he had waited until pundits, even only a few, would call for his abdication it would be too late. Then the political undertones would diminish and pollute the sincerity and selflessness of the decision. The way he decided to do it allowed Benedict to be ahead of the speculators and politicians among us. Dare I say he outsmarted them?
Leaders take note: Pope Benedict XVI provides a rare but profound example of humility in action. True leaders put their cause before their power and self-interest. Far from a failure or weakness, this may be the most shining moment of Benedict's papacy, and what will turn out to be a historically brilliant move.
