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, June 4, 2013

Baude and Cohen on Change (Higher Education Edition)

By Marc DeGirolami

Have a look at Will Baude's very interesting response to Glenn Cohen's post on the sorts of reforms to higher education that seem most and least promising in light of technological and other challenges (or advances). Here's a bit from Will's post:

I'm much more skeptical of a refrain that Glenn employs a couple of times in his post-- the idea that it's helpful for us to imagine that we were "creating the first universities for our day and age," and use those imagined ideal first universities to evaluate whether and how our actual universities ought to change. Maybe it's my inner Hayek, but I'm not sure how good our imaginations really are, and I'm not sure how relevant the product of those imaginations ought to be.

I mean, for starters, once we are in the imagining business, why universities? If we were creating the first system of higher education for our day and age, is there any reason to believe we would do it via university, rather than some much more unbundled combination of written and oral materials? Would we have general rather than specialized certifications? And if we did decide to invent universities, what ought they be like? Despite having thought about this for a while, I honestly have no idea, and I'm skeptical of most of those who do have a confident idea.

I come at this problem quite differently. One of the defining characteristics of American universities is the way that they've become embedded in our society over time, and the set of social norms in and around them. You don't have to be Tyler Cowen to think that two of the main reasons people learn things by going to universities are the effects of socialization and the higher social status obtained by going. We can tell stories about the superiority of interactive class discussion over the internet and the library, but surely those embedded social effects are a huge part of any such superiority. And many of those social norms are bottom-up, not top-down. Imagining new from-scratch universities pushes us to dissociate the university from some of its most important virtues.

Baude and Cohen appear to be discussing the best way to approach the reform of higher education. But I wonder if the fundamental difference between them isn't really so much about higher education specifically, but about the general nature of institutional change. One other quick thought: whether one believes that the university's existing educational virtues are worth preserving may depend at least in part on the extent to which one also believes that those virtues continue to be maximally conducive to the university's educational mission. But I take part of Will's point to be that it is difficult to think well about that sort of issue in vacuo.

"Pursuing the Truth in Love"

By Rick Garnett

Over at America, Matt Malone has this essay, "Pursuing the Truth in Love," about "the mission of [the magazine] in a 21st century church."  (HT:  Jana Bennett at Catholic Moral Theology).  In the piece, he proposes (among other things) that "[w]hile we may have solved the problem of the relationship between the church and the state, the problem of the relationship between the church and the political remains. Solving that problem, or at least presenting credible solutions to it, is the pre-eminent task of the Catholic media in the United States."

I think all of us who participate, as Catholics, in "public discourse" should read Malone's piece.  I don't expect that everyone will agree with all he writes (!), but there's a whole lot in it for all of us, and each of us, to think about.  He concludes with this:

“Love manifests itself more in deeds than in words.” America makes the following commitments:

1. Church. The church in the United States must overcome the problem of factionalism. This begins by re-examining our language. America will no longer use the terms “liberal,” “conservative” or “moderate” when referring to our fellow Catholics in an ecclesiastical context.

2. Charity. How we say things is as important as what we say. America seeks to provide a model for a public discourse that is intelligent and charitable. In the next few months, America will announce a new set of policies for the public commentary on our various platforms.

3. Community. America will appoint a community editor who will moderate our public conversation, ensuring that it rises to the standards we set for thoughtfulness and charity. We will continue to provide a forum for a diverse range of faithful, Catholic voices.

Monday, June 3, 2013

"Cardinal backs civil unions"

By Michael Perry

[From The Tablet, here:]

Cardinal backs civil unions

3 June 2013

Two of the most senior Belgian clerics have voiced support for civil unions, but said the Church would not see such a partnership as a marriage, which they said was only between a man and a woman.

Archbishop André-Joseph Léonard, Archbishop of Brussels, made his comments through his spokesman in response to an interview by the Belgian newspaper De Tijd with his successor, Cardinal Godfried Danneels.

In an interview to mark his 80th birthday, the cardinal told the paper it was good that states were making reforms to normalise same-sex relationships, saying it showed "more nuanced thinking about the person in their totality rather than being fixated on the moral principle". He said the recognition of gay relationships was a legal matter and not one for the Church to comment on, even though they could not constitute real marriage.

Danneels said the Church had evolved in its understanding of homosexuals.

 

Governor Tom Corbett's Commencement Speech at Villanova

By Michael Moreland

I want to echo Lisa's comment below about the rich discussion during the symposium on St. Thomas More sponsored by the Murphy Institute and the Center for Thomas More Studies. Speaking of Thomas More, Governor Tom Corbett of Pennsylvania delivered the commencement address at Villanova Law a couple weeks ago and spoke about Thomas More and Abraham Lincoln as role models for lawyers. The address is well worth watching, which you can do at this link (starting at 21:00).

Wieseltier on the Humanities

By Rick Garnett

Leon Wieseltier delivered the commencement address at Brandeis a few weeks ago.  Here's a bit, sent to me by a correspondent (The full address is available at The New Republic, here):

For decades now in America we have been witnessing a steady and sickening denigration of humanistic understanding and humanistic method. We live in a society inebriated by technology, and happily, even giddily governed by the values of utility, speed, efficiency, and convenience. The technological mentality that has become the American worldview instructs us to prefer practical questions to questions of meaning – to ask of things not if they are true or false, or good or evil, but how they work. Our reason has become an instrumental reason, and is no longer the reason of the philosophers, with its ancient magnitude of intellectual ambition, its belief that the proper subjects of human thought are the largest subjects, and that the mind, in one way or another, can penetrate to the very principles of natural life and human life. Philosophy itself has shrunk under the influence of our weakness for instrumentality – modern American philosophy was in fact one of the causes of that weakness -- and generally it, too, prefers to tinker and to tweak.

 

Thomas More on Ethics, Law, and Liberty

By Elizabeth Schiltz

I spent this past Friday and Saturday with an exceptionally congenial group of scholars, at a symposium the Murphy Institute co-sponsored with the Center for Thomas More Studies at the University of Dallas.  Under the extremely able guidance of the Center's Director, Dr. Gerard Wegemer, and two of its Fellows, David Oakley and Louis Karlin, we read and discussed portions of More's Utopia, Richard III, Tyrannicide, documents about his trial, and various letters, including the Dialogue on Conscience.  Participants included a number of fellow MOJ-ers (Marc DeGirolami, the Michaels Moreland & Scaperlanda, Tom Berg, and Susan Stabile), as well as  other legal scholars from here and abroad. 

I had always admired More for the courage of his witness, but never read his work.  Reading such a wide swath of his work under such informed guidance was a revelation.  We were challenged to think about More's actions and his writings as lawyers, not just scholars -- a rich exercise for bringing to life both the stakes and the contemporary relevance of his actions and his words (and his silences).  Wegemer, Oakley, and Karlin are all contributors to a valuable new resource for anyone who might want to use More as the subject of any law school class: Thomas More's Trial by Jury: A Procedural and Legal Review with a Collection of Documents.  (The volume also includes contributions from two of the other participants in our symposium, Sir Michael Tugendhut, Justice of the Queen's Bench, and Richard Helmholtz.) 

But the symposium certainly helped me appreciate that More's writings deserve attention for more than just the lessons of conscience and principle on display in his trial.  Some of our criminal law professors at the symposium were struck by how effective Raphael Hytholoday's account of his conversation with Cardinal Morton on how to properly punish thieves (in Book I of Utopia) might be in teaching theories of punishment in a criminal law class. 

One of the pieces I personally found most intriguing is from the Dialogue of Comfort Against Tribulation, an essay entitled On Private Property, Riches, and Poverty, in which More attempts to sort through some of Jesus' most challenging charges:  "If anyone comes to me and does not hate his own father and mother and wife and children and brothers and sisters, yes, and even his own life, he cannot be my disciple" (Lk 14:26) and: "whoever of you does not renounce all that he has cannot be my disciple" (Lk 14:33).  In the essay More (as is typical for him) teases out the many complex layers of the practical implications of what those charges might mean for us.  In our symposium, Steve Smith made the point that More's analysis might be a helpful contribution in many of our contemporary political debates, such as immigration.  I agree.  It seems to me that More's work might be a helpful supplement to some arguments typically made in terms of subsidiarity, the preferential option for the poor, or Aquinas' 'order of charity'.

More writes, for example:  ". . . though I am obliged to meet in some way the needs of every kind of person, whether friend or foe, Christian or heathen, my obligation is not the same toward every person, nor toward any one person in every situation.  A difference in circumstances greatly affects the matter. . . . Those are ours who belong to our charge either by nature, by law, or by some commandment of God. . . . Once God has by such chance sent [some stranger in need] to me, and has matched me with him, I consider myself definitely responsible for him until I can be rightly and decently, without any risk to his life, discharged of that responsibility. . . . [On the other hand] as much as God and nature both bind me to the sustenance of my own father, his need may be so little (though it is something), and a stranger's need so great, their needs may be so unequal, that both nature and God would have me releive that urgent necessity of a stanger -- even if it's an enemy of mine and God's too . . . -- before releiving a little need that is unlikely to do great harm to my father and my mother too."

I highly recommend the resources of the Center for Thomas More Studies -- both on their website and in on their staff -- for anyone interested in studying this great saint.

Sunday, June 2, 2013

Catholicism and "libertarianism" (again)

By Rick Garnett

Over at the dotCommonweal blog, political theorist Robert Geroux has a series of posts (go here and here to start reading) (a) arguing against the views of and some recent writings by Fr. Robert Sirico and (b) exploring and criticizing what he calls the "dreamworld of libertarianism."  The posts are worth reading, but they also invite, in my view -- as Catholic critiques of "libertarianism" (at least, the Catholic critiques that are directed against the economic libertarianism of some "conservatives") generally do -- a cautionary, but genuinely-intended--as-friendly amendment, namely:  While it is true that the Catholic account of the person, society, community, authority, flourishing, and politics is more rich than, and in many important respects incompatible with the premises of some forms of "libertarianism", it is not the case either that all (or even most) policies espoused by or associated with "libertarianism" are inconsistent with the Catholic account or are otherwise objectionable.

Too often (though not, I think, in Geroux's posts), it is thought to be a sufficient "Catholic" response to a "libertarian" or "neo-liberal" or "conservative" policy proposal having to do with economic or social-welfare matters to attach to that proposal a word like "Randian" or "libertarian" or "individualistic", as if the attaching settled the matter.  If Catholic thinkers are really going to -- as MOJ readers and others should want them to -- provide genuinely Catholic alternatives to the "libertarianism" of the left and right, or to versions of statism and collectivism that are also inconsistent with the Church's account of the person, etc., then they (all of them, of whatever stripe) need to acknowledge that some claims and arguments sometimes associated with "libertarianism" are sound and important.  For example, the "moral hazard problem" is real and persons do respond to incentives.  (Authentic) human freedom is a good thing, and constraints by government on that freedom need to be justified.  (They often are justified, but they need to be justified.)  "Society" and "the state" are different.  The rule of law, constitutional limits on public authority, and (reasonable) property rights are good -- they make communities better, and make it more likely that persons will flourish.  We are not merely lone, self-sufficient, solitary, unsituated, non-dependent rights bearers, but we're also not just bricks in the wall, cogs in the machine, etc.

Geroux writes:

[T]here’s nothing new or challenging about the awareness of the claims others make upon us, in the name of individual rights. As Simone Weil pointed out, every articulation of right that comes from another person impinges upon me. As adults, however, we acknowledge these sometimes burdensome obligations as bonds that tie us together and which constitute us collectively. We may differ on the particulars of family, church, and community, but we comprehend these things as part of what make us fully human.

Libertarianism represents a rejection of those bonds; it fetishizes my actions and accomplishments and imagines a world without mutual obligation. Its logic is reminiscent of the dreamworld of a child, or at the very best an adolescent; its narrative order sometimes reads like the script of an action film in which all conflicts are fantastically resolved by hypertrophically masculine heroes. Such stories are fine in their context, but as Freud suggested, the dreams of adults are different. They take place in strange places, reflect complicated nuances of meaning, and are peopled by characters in unpredictable situations. They are full of subtlety and sometimes tragic difficulty. They cannot be easily resolved. They resist facile analysis.

A "libertarianism" that is as Geroux describes is, certainly, to be rejected.  We are situated and embedded in webs of obligation, duty, and oughts that are not (only) the result of our choice that do not depend on our approval or consent.  But . . . there's a childishness (perhaps of a different sort) in the accounts that many of libertarianism's critics would offer (consider the lyrics of John Lennon's "Imagine"), and so maybe a task of Catholic thinkers is to challenge us to leave "dreamworlds" behind and to confront a complicated, fallen world with a combination of appropriate humility and confidence.

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