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.

Friday, January 9, 2015

Merrie Melodies presents: "A Winters Tale"

For reasons I cannot fathom, Michael Winters of the National Catholic Reporter seems determined to cast himself as the Wile E. Coyote of contemporary liberal Catholicism. His elaborate efforts to capture his prey—his roadrunners are those “culture warrior” bishops (such as Charles Chaput of Philadelphia) and Catholic intellectuals who are too zealous for his taste in defending the Church’s teachings on life, marriage, and sexual morality—inevitably backfire, usually comically and sometimes humiliatingly. But he intrepidly keeps at it, hoping against hope, I suppose, that his next effort will finally bring success.

Earlier this week, I was the roadrunner, as from time to time I am. In a piece first posted here at MoJ and then re-posted by First Things and some other sites, I had offered four points to bear in mind about the teaching authority of the papal magisterium as we await the encyclical letter Pope Francis is preparing on our moral obligations concerning the natural environment. They were drawn from the teaching of the Church herself (in Lumen Gentium and the Catechism) about magisterial authority. But Wile E. Coyote perceived in my stating them a nefarious purpose:

“Professor George . . . set[s] out a nearly pitch-perfect set of talking points for minimizing the impact of whatever it is the Holy Father will say, that is, advancing his own conservative political agenda.”

And, he thinks, he can prove it!

He quotes this sentence from my post:

“The Pope has no special knowledge, insight, or teaching authority pertaining to matters of empirical fact of the sort investigated by, for example, physicists and biologists, nor do popes claim such knowledge, insight, or authority.”

Now anyone who knows anything about Catholic teaching on papal authority knows that this proposition is, not to put too fine a point on it, undeniable. If the Pope wants to know whether it is going to rain tomorrow, he has no hotline to the Holy Spirit on the subject. Weather patterns are (to hew closer to the Church’s understanding of its authority) no part of the deposit of faith, complete at the death of the last Apostle, which the Pope and the bishops with him are protected from error in formally defining and clarifying over time. When it comes to meteorology, the Pope has to do what you and I and everyone else must do: consult the meteorologists.

But Wile E. Coyote nevertheless thinks he’s finally got the prey in his grip.  So he goes for it.

The sentence, he labors to explain, “suffers from several difficulties. First, the pope does have knowledge that you and I do not have, and that I suspect Professor George does not have: He listens to the bishops throughout the world and knows what concerns they have regarding the environment and other matters of moral concern.”

Let’s hit the pause button for a chuckle. I had pointed out that popes have no special knowledge regarding matters of empirical fact of the sort investigated by natural scientists. Mr. Winters tries to contest the point by saying that popes “listen to the bishops throughout the world and know what concerns they have regarding the environment and other matters of moral concern.” Thus does Wile E. Coyote’s explosive go off in his hand.

Obviously the concerns about which popes may consult bishops are not “knowledge pertaining to matters of empirical fact of the sort investigated by, for example, physicists and biologists.” Look, I love Archbishop Chaput, for example—I admire him as much as Mr. Winters seems to despise him. I think he is a man of enormous wisdom and profound goodness. But if I want to know whether I ought to bring an umbrella to work, I don’t call him; I go to weather.com. Popes do much the same thing (though I don’t know their preferred meteorological websites). They rely on scientists to do the science, not bishops. If there is a dispute among scientists as to whether the climate is changing in disastrous ways and whether human activity is partly to blame, popes cannot resolve it by consulting their brother bishops or reading the scriptures or reviewing the Church’s tradition.

At some level, it seems, Winters is aware of this. So the Coyote has a back-up plan. Actually, he insists, there is no meaningful dispute among scientists—at least among qualified ones. Back to the cartoon:

“I am also surprised that someone of Professor George’s sophistication and learning is so quick to equate the arguments of believers and skeptics regarding climate change. To repeat, no Catholic should think that just because some conservative think tank can find a couple of off-the-radar professors who think climate change is just dandy, they can then claim that we can consequently ignore what the pope teaches.”

Then, on cue, the Koch brothers are brought on to the stage (as they are these days in most liberal polemics) as a way of insinuating that the crank scientists who don’t go along with liberal orthodoxy on climate change are motivated by venality.


Shall we watch the explosive go off in the Coyote’s hand again?

Who are these “off-the-radar professors” whose palms the Koch brothers are greasing to put in appearances at the Heritage Foundation and Cato Institute to deny the undeniable?  Rather inconveniently for the Coyote, they include some of the most famous and on the radar scientists in the world: for starters, there is physicist Freeman Dyson of the Institute for Advanced Study; eminent climate scientist Richard Lindzen of MIT; physicist and sodium laser guide star inventor William Happer of Princeton; Nobel Prize-winning physicist Ivar Giaever. 

Mr. Winters asks:

“Would Professor George assert that if some scientists argue that humanlife begins at birth, we can dismiss what the pope says insofar as it is based on a different scientific belief about when human life begins?”

Let’s lay aside the absurd insinuation that I urged “dismissing” anything the Pope says.  That’s just more polemical foolishness. The first thing to note about his hypothetical example is that it gains its apparent force from a false analogy. There is no scientific debate about whether birth transforms an inanimate object into a living one, or a biologically non-human creature into a member of the species Homo sapiens. No one who knows the first thing about mammalian biology could entertain such loony notions.

And the question of when a new human being comes into existence is in the first instance a biological question, though it has moral, metaphysical, and religious implications. To resolve it, the proper methods of inquiry are scientific, not philosophical or theological.

The Church has not always assumed that the life of a human being begins at conception. She only began teaching that—or, more accurately, teaching moral norms specified in light of that—when modern embryology, which began with Karl Ernst von Baer’s discovery of the mammalian ovum in 1826, established it. Before then, neither bishops nor anyone else had any clear idea of what conception was. That information was certainly not to be found in scripture or tradition, the data of the faith that the Holy Spirit protects popes and bishops from distorting, in the exercise of their duty to hand it on intact.

Mr. Winters says:

“Of course, we Catholics believe that from the moment of conception a human life is present that deserves protection and possesses dignity. Even if that life is not yet individuated, and cannot therefore possess rights the way an individual can possess rights, the potential of that life is precious and must be honored.”

The reference to a “life that is not yet individuated” shows, I suspect, that Winters himself doesn’t understand the biology of embryogenesis and early intrauterine human development. Monozygotic twinning, which must be what he has in mind here, is not something that “individuates” a “non-individuated” embryo, nor is birth the event that individuates the child, who certainly pre-exists it.

He also doesn’t understand the Church’s moral teaching, which is not that a “non-individuated” life “cannot possess rights the way an individual can possess rights” or that mere “potential of that life” is to be honored. Indeed, this is a travesty of the Church’s teaching.

We honor, and are taught by the Church to honor, human lives, not their “potential.” We honor, and are taught by the Church to honor, the life of every human being at every stage of development, including the infant, fetal, and embryonic stages. That’s what it means to say that human beings possess inherent dignity and rights. Our status as persons is not accidental and acquired. We come into being as persons and do not cease being persons except by ceasing to be (i.e., dying). 

But now let me reformulate Mr. Winters’ question to make it a more serious and interesting challenge: If the credible science told us that life began some time into pregnancy (but before birth), would I say that faithful Catholics could disagree on when ending a pregnancy meant killing a person?

Yes. Thomas Aquinas was no heretic for thinking, based on the best data available to him, that human beings came to be at some point after the start of pregnancy. To be sure, he followed the Church’s constant teaching in opposing all abortion, on the ground that non-lethal contraception is also gravely wrong. But it wasn’t until much later that it became clear that the Catholic teaching against intentional killing of innocent human beings was relevant throughout pregnancy.

So the difference here between abortion and climate change is not that the Church authoritatively teaches biology but not climatology. It’s that there really is no unsettled scientific question of whether life begins at birth (or even at “viability” or “quickening”). We know that from the earliest embryonic stage what exists is a living member of the species Homo sapiens—one that is numerically identical to the individual who will later be a nine-month old infant, a nine-year old child, and with luck a 90-year old woman or man.

Hence, the denial of the unborn child’s right to life does boil down to rejection of a specifically moral principle taught by the Church. No informed observer today—certainly no biologist counterpart of a Dyson or a Lindzen—could believe that birth marked an inanimate object’s transformation into an organism (human or otherwise). (Of course, a biologist might still be pro-choice, but only on moral grounds that the Church does authoritatively reject: i.e., the idea that not all human beings are persons with a right to life.)

I doubt that even the Koch brothers—who, perhaps I should point out to soften Mr. Winters’ attitude toward them, are pro-choice on abortion and pro-gay marriage, like so many of the political figures admired by Winters and his colleagues at National Catholic Reporter—could pay a biologist enough money to induce him to make the buffoonish claim that science tells us that human life begins at birth.

Indeed, even the most ardently pro-choice philosophers have pointed out to fellow abortion supporters that the debate is not about whether abortion takes the life of a human being. Clearly it does. Peter Singer, for example, pointed this out in a letter to the New York Times correcting those who have ignorantly depicted the debate as a question of “when life begins”; Ronald Dworkin, in a book devoted to defending abortion, characterized abortions as “choices for death.” The abortionist’s objective is not to deliver a live baby (which is one way of “terminating a pregnancy”) but rather to bring about, in the chillingly clinical language of the abortion manuals, “fetal demise.” The abortion debate is about something non-empirical, something moral: do human beings in all stages and conditions have dignity and a right to life? It is on this non-empirical question that the Church claims authority (though even the basic moral insight is one that she believes is rationally accessible apart from revelation). And she has been able to specify her moral teaching in light of the biological facts only because scientists, employing the proper methods of scientific inquiry, have discovered them.

Tuesday, January 6, 2015

Beever on the value of law as an object of contemplation

This past summer, Marc DeGirolami linked to Allan Beever's The Declaratory Theory of Law. I recently had occasion to read another piece by Professor Beever: Formalism in Music and Law. The concluding section touched a chord, so to speak, such that I thought I would pass it along to MOJ readers. Here's a bit:

Of course, music has its functions. Its most significant function is to give pleasure to listeners. But its ability to do this would be almost entirely eliminated were listeners to attend to its function rather than its form. The final movement of Mozart’s Symphony no 41 in C Major, K 551 contains the most breath-taking combination of sonata form and fugue. This astonishing achievement can afford us enormous pleasure. But a ‘listener’ who focused on her own pleasure would fail to hear it and would in all likelihood be bored. Music is cognitive. It does not work like drugs and its effect on us is not the same as its effect on cows (apparently, cows produce more milk when they are played classical music).

Of course, no such argument can be constructed for law. The law is not justified as an object of contemplation. But there remains an illuminating analogy here. Part, only a small part, of the value of law flows from its being an object of contemplation. In a very similar way to music, it enriches the lives of many lawyers. Do we not sometimes revel in the law’s intricacies and delight in its complexities? Is it not true that much of the pleasure of studying the law comes from such? Can we not describe law as, in some way, beautiful? If that sounds just too outlandish, it is worth remembering that many mathematicians swear that mathematics is beautiful and frequently compare it to Bach’s music. If mathematics can be beautiful, surely anything can be. These questions are not rhetorical. Those who hold that legal categories are a mere smokescreen for policy must answer them in the negative. For them, the canvas of the law is really a window to be seen though. They appreciate law as the owners of cows appreciate music (‘Yay, more milk. Isn’t Mozart great?’).

***

*** What does contemplation of the law reveal? The law, of course. But that is not all. When we treat it as an object of contemplation in its own right and not as a window to be seen though, it also reveals justice. And we are in desperate need of this. *** [W]e are so powerfully affected by functionalism that many of us cannot see the world beyond it. It is no surprise, then, that many want to look through the law to its alleged functions. But just as contemplation of art can change the way that we see the world, so can contemplation of the law. It is often rightly said that wheat fields never look the same after one has seen van Gogh’s paintings of wheat fields; and, to one captured by functionalism, the world will never look the same again after attending to the law. That contemplation is possibly the most powerful experience of justice as a pervasive phenomenon that it is possible to have.

A bad situation - for academic, political, and religious freedom - in China

I suppose it is not news that the political authorities in the People's Republic of China are not -- despite the sincere, or perhaps naive, hopes of some -- friendly to academic, political, or religious freedom.  This story ("Maoists in China, Given New Life, Attack Dissent") ran yesterday on the front page (!) of the New York Times and is, in my view, a must-read . . . especially for administrators and officials of institutions of higher education (including my own) considering collaborations or parterships with such institutions in China.  Here's a bit:

. . . Two years into a sweeping offensive against dissent, Mr. Xi has been intensifying his focus on perceived ideological opponents, sending ripples through universities, publishing houses and the news media and emboldening hard-liners who have hailed him as a worthy successor to Mao Zedong.

In instructions published last week, Mr. Xi urged universities to “enhance guidance over thinking and keep a tight grip on leading ideological work in higher education,” Xinhua, the official news agency, reported.

In internal decrees, he has been blunter, attacking liberal thinking as a pernicious threat that has contaminated the Communist Party’s ranks, and calling on officials to purge the nation of ideas that run counter to modern China’s Marxist-Leninist foundations. . . .

The Times story calls into serious question, it seems to me, the relatively optimistic thesis of this article ("China Warms to Catholic University's Mission"), which ran on the Times Higher Education site a few days ago. 

Good news for kids, and education reform, out of Florida

The Grinches have failed (for now) again in the effort to undo educational-choice initiatives in Florida.  The article's concluding paragraph puts the matter well:

 In national debates over school choice, public education is increasingly coming to be understood not in terms of school buildings, but delivery of educational services. School choice measures such as personal learning scholarship accounts and tax credit scholarships allow those who know the needs of the child best— the parents— to choose an educational option that best meets the needs of the child. The recent court victory will allow hundreds of Florida families to do just that.

Sunday, January 4, 2015

Violence, The Vulnerable, And Hope For 2015

As 2014 ends and a new year begins, the media has been replete with reflections on what has occurred and what we can anticipate in the coming year. As I engaged in my own set of reflections and projections, two separate media pieces struck me.

 

 

The first was this Washington Post piece entitled, Religion Plays Large Role In Major Headlines From 2014. While the piece specifically mentioned Pope Francis, it unfortunately focused on only one news making event, the Synod on the Family, rather than his full resume of astounding accomplishments during 2014. In fairness, the Pope's crucial role in Cuban - American relations had not been announced at the time of the article. However, his continued activism on issues of the most vulnerable, his reform of the Vatican Bank, his movements forward on issues of clergy abuse and the environment all deserve mention as important ways in which the Church can and has affected public policy. The Vatican Press Office summarized the Pope's achievements as "a culture of encounter," underscoring his effect at galvanizing the world to humility and action - an effort that would be welcomed in any secular policy making body.

 

The second article regarding 2014 that caught my attention was one outlining crime and violence here in Washington. While crime continues to remain fairly constant and historically low in many cities, such is not the case for women and children. This piece outlines the disturbing trend in the Washington area of an increase in homicides involving - not street crime or drug violence - but domestic violence and child abuse. With much discussion of high profile domestic violence cases dominating the headlines for their natural news cycle and then delving into victim blaming and normalization, this commencement of a new year should remind us to move into action to protect the millions of women and children vulnerable because they are just that: women and children.

 

The fact of the matter is that it is dangerous to be a woman or a child in the world today. For example, the 2014 UN Global Report on Trafficking In Persons observes that 82% of trafficking victims are women and children, with children a rapidly increasing category of victims.

 

That is not the worst of it. As we watch the news cycles, we see that this is becoming accepted as the reality of the world. It was April when hundreds of Nigerian girls were kidnapped by Boko Haram...and the world was outraged. Now, they are largely forgotten and, in the words of the New York Times, "[s]even months later, the drone flights have dwindled, many of the advisers have gone home and not one of the kidnapped girls has been found." Two years ago children were slaughtered at Sandy Hook, and today little has changed to end this type of violence.

 

As we pivot from 2014 to 2015, we may want to combine these two themes of religion and violence to make new headlines. My hope for 2015 is that we recognize that victimization for the vulnerable is often a complex problem that demands a long term commitment in response. We should follow Pope Francis's lead and move from humility to long term action on behalf of those most vulnerable...and recognize that "long term" means more than one news cycle.

 

 

Christ the Teacher: Reflections on the Vocation of a Christian Law Professor

Christ the Teacher

Thanks to Rick Garnett for encouraging MOJers to offer their reflections on the recent Lumen Christi/Law Professors Christian Fellowship panel on “The Vocation of a Christian Law Professor.”  Thanks also to Bob Cochran and Mike Moreland for planning the event.

Barbara Armacost framed her remarks by responding to the claim put forth by some believers that if a Christian is engaged in the world (whether by providing famine relief to non-Christians in Africa, or by educating law students in the United States), and he or she fails to explicitly invite the person served to know Jesus as Lord and Savior, then the Christian has accomplished nothing.

She noted that in teaching law, inviting students to Christ can be a delicate matter that calls for sensitivity and prudence, perhaps especially where a secular law school is involved (though, I think, a similar sensitivity is needed in most religiously sponsored schools). 

But while the work of a Christian is not simply a vehicle for proselytization, it is always evangelical in nature – it shares the good news.  It reflects, as Barbara noted, the “Kingdom values” of justice and shalom.  As such, work that advances the good of individuals and the common good is never pointless.  The point is to contribute to the concrete human flourishing of persons in the here and now, and to witness to the eschaton.  Here Barbara quoted N.T. Wright from Surprised by Hope (p. 208) at length: “[W]hat you do for the Lord is not in vain.  You are not oiling the wheels of a machine that is about to roll over a cliff. . . . You are, strange as it may seem, almost as hard to believe as the resurrection itself – accomplishing something that will become in due course part of God’s new world.”

One’s actions, consistent with the Gospel, bear witness to the Kingdom, and make it present in time, anticipating the coming of the Kingdom in its fullness at the end of time, wherein Christ will be all in all.  These actions may seem pointless from the vantage point of the world according to its narrow rationality based on practicality, utility, and efficiency.  But that does not make them so.  Here one must, in humility and with hope, surrender one’s actions to the Lord, trusting in the providence of God that fruit will be borne of our efforts, perhaps in ways that will go unrecognized, but “fruit that will last” (John 15:16).

Rob Vischer offered that the question of the meaning the vocation of a Christian law professor must be answered within the larger question of the vocation of a Christian lawyer.  And here he gave two quite poignant examples from his own experience as a big firm litigator: one involved the death-bed deposition of a toxic tort victim, while the other involved consoling the constituent of a corporate client whose actions were at the center of a dispute.  In each case he found himself called to respond person-to-person and not simply lawyer-to-witness or lawyer-to-client.  What Rob’s talk made clear is that it is the vocation of every Christian lawyer and Christian law professor to live a life inspired by Jesus.

What I thought of in hearing these reflections is the story from Luke 2:41-52 that recounts how the Holy Family went up to Jerusalem for the celebration of Passover.  On their return, Mary and Joseph discover that Jesus was not in their party.  They returned to Jerusalem to search for him.  “After three days they found him in the temple, sitting in the midst of the teachers, listening to them and asking them questions, and all who heard him were astounded at his understanding and his answers.”

This is a reminder that to fulfill his or her vocation as a law teacher one must sit at the knee of the Master.  To be a Christian and a teacher one must, in the first instance, see oneself as a student . . . a student of Christ’s.  Indeed, one must recognize “Christ the Teacher” (the name of the traditional Byzantine icon pictured above).  One must recognize Christ as the Teacher who holds the answers that your heart and mind long to know.  As such, we must be attentive students, confident that we can turn to a loving and patient teacher who listens, the supreme teacher – both the rabbi who reveals the word of God that is Himself, and the victim who teaches us how to love, bearing the agony of the Cross.  We need not wait for office hours.  He is always available in prayer, a teacher to whom we can always turn, in scripture and in the Eucharist.

Christ should inspire our lives and (as Marc DeGirolami reminded me in conversation) the work of our institutions.  Only in this way can Christian law professors and Christian law schools fulfill their mission in the world.

Saturday, January 3, 2015

As we await the papal encyclical on the environment

So here we are waiting for Pope Francis to hand down his encyclical on our moral responsibility to care for the natural environment.  Already there is lots of huffing and puffing, and ideological battle lines are being drawn. It seems that virtually nobody in the public media is interested in being taught by the Pope in his magisterial capacity. Instead, all the talk is about how the encyclical can or can't be used to advance political agendas. Catholics who fear that the Pope is a secret (or perhaps not-so-secret) radical left-winger, are preemptively questioning the Pope's authority as pope to address questions of the environment at all.  Catholics who hope that the pontiff is indeed a radical left-winger, anticipating an encyclical that could have been written by the Environmental Defense Fund (if not the Earth Liberation Front), have suddenly embraced the idea that popes indeed have authority to teach and even bind the consciences of faithful Catholics on questions of moral obligation.

To me, the points worth bearing in mind as we await the encyclical letter are these:

(1) The Pope has the right and responsibility to teach and even bind the consciences of the faithful on the truth of proposed moral norms, including those norms pertaining to our obligations concerning the natural environment. 

(2) Pursuant to the norms set forth in Lumen Gentium and other relevant documents pertaining to the teaching authority of the magisterium (including the papal magisterium), Catholics are bound to give religious assent to the norms formally proposed for such assent by the Holy Father.  There is no area of morality in which the papal writ does not run. The Pope can speak authoritatively on questions of our moral responsibility to care for the natural environment, just as he can speak authoritatively on the obligation of truth-telling, the sanctity of human life, questions of marriage and sexual morality, matters of war, religious liberty, criminal punishment, and so forth.

(3) The Pope has no special knowledge, insight, or teaching authority pertaining to matters of empirical fact of the sort investigated by, for example, physicists and biologists, nor do popes claim such knowledge, insight, or wisdom.  Pope Francis does not know whether, or to what extent, the climate changes (in various directions) of the past several decades are anthropogenic---and God is not going to tell him. Nor does he know what their long term effects will be. If anything he teaches depends on views about these things, all he will have to go on is what everybody else has to go on, namely, the analyses offered by scientific specialists who have studied the matter.  He has (just as we have) no guarantee of the soundness of the views of any scientist or group of scientists. A view that he adopts based on what a climate-change scientist or group of scientists--be he or they believers (known to their critics as "alarmists") or skeptics (known to their critics as "deniers")--say, could be wrong.

(4) Although faithful Catholics are not bound by positions adopted by the Pope on such matters, they are bound by the moral norms he proposes for them to hold definitively.  So, for example, let's imagine that a Pope writing in an encyclical says that pregnant women should not take ibuprofen (as they might do for a headache or toothache) because it will cause the death of the children they are carrying, and there is a basic moral responsibility not to cause the death of a child at any stage of development.  The fact that one need not believe that ibuprofen is an abortifacient (since there are very good reasons for believing it is not--and, in fact, it is not) does not affect the validity of the norm against causing the death of unborn children, nor does it alter the authority of the Pope to teach the norm as a norm to be held definitively by the faithful.  So to disagree with a pope on the question of empirical fact about whether ibuprofen is an abortifacient is not necessarily to dissent from his teaching that a child has a right not to be killed by abortion--a right corresponding to a duty to refrain from causing embryonic or fetal death.  (I'm prescinding here, of course, from the analytically separate question of when performing an act that forseeably results in death as an unintended side-effect of an otherwise morally permissible action is not unjust and may therefore itself be morally permissible.)

"The Vocation of the Christian Law Professor"

Greetings from rainy Washington, D.C., where hundreds of law teachers are gathered for the Annual Meeting of the AALS and other assorted events.  Last night, thanks to the Law Professor Christian Fellowship -- one of Prof. Bob Cochran's many gifts to the legal academy -- and the Lumen Christi Institute, I had the pleasure of gathering with some friends and colleagues (including several MOJ-ers) to hear thoughtful reflections on the "Vocation of the Christian Law Professor" from Prof. Barbara Armacost (U. Va.) and Dean Rob Vischer (St. Thomas).  After the presentatations, the participants were led in Evening Prayer by Fr. Paul Rourke, S.J., who serves as chaplain at the Georgetown University Law Center.

Both presenters shared experiences and reflections relating to the project of making our work as law teachers -- service, scholarship, and teaching -- appropriately student-centered and allowing it to be pervasively animated and inspired by what Prof. Armacost called "kingdom values", including justice and "shalom."  I'd welcome reflections and reactions from others who attended.

Thanks especially to Bob Cochran and Michael Moreland for putting the event together!