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.

Wednesday, September 30, 2009

A house divided...

By Robert John Araujo, SJ

 

Thanks to Michael P. for bringing to our attention the National Catholic Reporter story about Sr. Theresa Kane, RSM. I had seen the story earlier today, and I have been following the accounts of the investigations of the Leadership Conference of Women Religious. Unlike Michael, I do not have any relatives who are women religious, but I do have friends who are members in various women’s religious institutes. I know that some of them welcome the investigation to which Sr. Theresa Kane refers and objects. I have been praying over the matter for some time; moreover, I have been studying what is going on. In my study, I continue to reflect on and ponder the words of John Paul II in his encyclical letter Veritatis Splendor:

 

While exchanges and conflicts of opinion may constitute normal expressions of public life in a representative democracy, moral teaching certainly cannot depend simply upon respect for a process: indeed, it is in no way established by following the rules and deliberative procedures typical of a democracy. Dissent, in the form of carefully orchestrated protests and polemics carried on in the media, is opposed to ecclesial communion and to a correct understanding of the hierarchical constitution of the People of God. Opposition to the teaching of the Church’s Pastors cannot be seen as a legitimate expression either of Christian freedom or of the diversity of the Spirit’s gifts. When this happens, the Church’s Pastors have the duty to act in conformity with their apostolic mission, insisting that the right of the faithful to receive Catholic doctrine in its purity and integrity must always be respected. “Never forgetting that he too is a member of the People of God, the theologian must be respectful of them, and be committed to offering them a teaching which in no way does harm to the doctrine of the faith”. N.113

 

I hold the view that these words of John Paul II apply to all the people of God, be one a bishop, a cleric, a religious, or a lay member of the faithful. Susan, Michael, and I have addressed issues surrounding these investigations before, and I suspect we will address them again as the investigations proceed. In the meantime, I think prayers are in order for the Church, the people of God, the Body of Christ.

 

RJA sj

 

Congratulations to Teresa Stanton Collett

By Robert John Araujo, SJ

Congratulations are in order to Teresa Stanton Collett, colleague of our members from St. Thomas and a friend to many of us here at the Mirror of Justice. Teresa was nominated this morning to be a consultor to the Pontifical Council for the Family. The announcement of her nomination is here in the Italian version. Do well, Teresa, do well!

RJA sj

Wednesday, September 23, 2009

Where goeth political debate?

By Robert John Araujo, SJ

 

 

Many thanks to Rob Vischer for bringing to our attention the recent developments regarding Professor Scott FitzGibbon of Boston College Law School and the “ruckus” over his appearance in a political advertisement concerning the state of Maine marriage referendum. At the outset of this posting I make a disclosure that Scott and I are good friends. Our friendship began thirty-nine years ago. At that time he was a nominal Christian, but in due course he entered the Church several years later. He has a keen intellect, and he searches for truth honestly and objectively.

I believe that Rob and I share the position that Professor FitzGibbon was clearly within his rights as a citizen and as a member of an academic community to express his view and propose to fellow citizens a particular course of action on an important political issue, in this case, same-sex marriage. In last year’s election season, I addressed the rights of individuals to participate in the political process, but I was and remain critical of those who deny to others the right that they insist on for themselves. [HERE] I am troubled by the fact that Professor FitzGibbon is being criticized for stating in the political advertising that he is a professor at Boston College. He did not imply or state that he represented Boston College. Rather, his identification was a statement of fact about what he does for a living and where he is a professor. Both he and I know that there are those members of his university who do not share all of his views on political issues just as he does not necessarily share theirs. In this context, faculty members from universities and colleges have often expressed political views and identify the institution with which they are associated not intending to imply that they speak for their institution. For example, last fall, members of then-Senator Obama’s Catholic Advisory Committee publicly associated themselves with their own home institutions that included Xavier, Harvard, Boston College, Toledo, Notre Dame, Georgetown, and Holy Cross. [HERE]

We all most likely agree that the issue of same-sex marriage is hotly contested subject generating robust engagement. But I think—I hope—that we can agree that it can be discussed and debated in a civil and rational manner. And that is precisely what Professor FitzGibbon has done. When certain views, his views in this case, are hounded from the public square, democracy is in trouble. When good people as citizens cannot enter a political discussion or enter a political campaign because others contend that their position is unwelcomed in the public debate, democracy is in peril.

I have raised on previous postings the thoughts of Christopher Dawson that provided insight into the point I was making. I shall do so again today. In a 1959 essay entitled Civilization in Crisis, Dawson said,

 

...if Christians cannot assert their right to exist in the sphere of higher education, they will eventually be pushed not only out of modern culture but out of physical existence. That is already the issue in Communist countries, and it will also become the issue in England and America if we do not use our opportunities while we still have them. We are still living internally on the capital of the past and externally on the existence of a vague atmosphere of religious tolerance which has already lost its justification in contemporary secular ideology. It is a precarious situation which cannot be expected to endure indefinitely...

 

The “ruckus” involving Professor FitzGibbon demonstrates that Dawson saw something happening in 1959. With the passage of fifty years, we have evidence that his prediction seems to be a most accurate one.

 

RJA sj

 

Monday, September 14, 2009

Some reflections on sovereignty by one who studies the Church’s social doctrine and public international law

By Robert John Araujo, SJ

 

 

            I would like to thank Patrick and Greg for their discussions about sovereignty. As Patrick mentioned, there was not the opportunity to hear from the realms of public international law or theology at the symposium that was described, so perhaps I could offer a few thoughts on these topics.

            Within the realm of international law, at least as it is today, states have the primary duty of enforcing the international principles and legal norms. Ironically, states have often been the perpetrators responsible for violating these norms. Yet there are mechanisms, albeit imperfect, for making corrections that would negate or minimize violations. A principal means of achieving this is through instruments, i.e., treaties and other agreements, which give rights and place responsibilities on the states parties. Those states which have ratified these instruments have acknowledged their duties to obey the norms which the instruments contain. Yet, as sovereigns, these states have also pursued actions conflicting with norms, and they have justified their actions on the grounds of exercising their state sovereignty. An illustration of this last point would be the promulgation of the Nuremberg Laws by the Third Reich. As a result of pursuits such as these, critics of state sovereignty have become more vocal in their condemnation by arguing that traditional notions of sovereignty cannot insulate states from their obligations to abide by the fundamental norms. This sentiment has been asserted by Michael Ignatieff in his summation that the NATO campaign against Yugoslavia “depends for its legitimacy on what fifty years of human rights has done to our moral instincts, weakening the presumption in favor of state sovereignty, strengthening the presumption in favor of intervention when massacre and deportation become state policy.” The challenge to traditional notions of state sovereignty has been argued by others elsewhere.

            While the exercise of state sovereignty has led to the unwarranted violation of well-understood legal norms, it would be imprudent to conclude that sovereignty must be curtailed in order to ensure the respect for the rule of law. Arguably, sovereignty as a legal concept in domestic and international law has more than one dimension or practice. If my contention has merit, then it would be wise to investigate whether the exercise of sovereignty can be or is compatible the protection of these fundamental norms of international law. Here, I contend that sovereignty, which is exercised by people in their exercise of self-determination, is also a matter which needs to be protected as an important human right. It is this kind of sovereignty—popular sovereignty—which is essential in the protection of many fundamental international norms, especially but not limited to those addressing basic human rights. Should popular sovereignty be subjected to criticism and attack that lead to its demise, the integrity of other norms, especially those dealing with basic rights of the human person, can also be open to attack. Popular sovereignty and many international norms and human rights are inextricably linked. When popular sovereignty is criticized, what will become of the other norms?

To be properly understood within the framework of international law, sovereignty is a compound doctrine that is best understood by examining the relationship between the sovereignty of a state and the sovereignty of peoples, i.e., the sovereignty of nations. While a sovereignty-exercising state can be a totalitarian regime, it can also be a democratic one in which the sovereignty of the people confers and controls the sovereignty of the state. And these people exercise their sovereignty in the implementation of their basic human rights.

Although it is far from an ideal institution, the United Nations has a role in protecting this fundamental right of self-determination and popular sovereignty. As the Charter of the United Nations declares, one of the primary purposes of the organization is “[t]o develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples…” An illustration of the United Nations promoting this purpose occurred on December 14, 1960 when the General Assembly adopted the Declaration on the Granting of Independence to Colonial Countries and Peoples thereby recognizing the sovereignty of a subjugated people against a colonial power. In this declaration, the approving U.N. members stated that “all peoples have an inalienable right to complete freedom, the exercise of their sovereignty, and the integrity of their national territory.”

Even though exercises of sovereignty can be the source of violation of fundamental international norms, they can also be equivalent to expressions of fundamental rights of nations and of individuals. Therefore, in some instances sovereignty and its exercise can be crucial to the protection of rights because it can be an expression of how individuals and the communities which they form put into practice those elements of self-determination which are constitutive of human rights. Here the concepts of subsidiarity and solidarity, essential elements of the Church’s social doctrine, come into play

When criticism is made of sovereignty in this day and age, it does not seem to take account of those sovereignties which rest in the nation, that is, the people themselves. If, indeed, some people are interested in the protection of human rights, they must also take account of the fact that the right of political, cultural, and social self-determination is inextricably related to people exercising sovereignty. Efforts made to curtail this kind of sovereignty would deleteriously affect the exercise and protection of a wide variety of other international norms, especially those addressing basic human rights. A sovereign nation is a community of people who exercise shared values concerning human dignities which shape and direct the particulars of their communitarian self-determination.

            I would suggest that the Church contends that the concept of “self-determination” benefits from a preferred status in the world of international law. This is a point alluded to when Pope John Paul II spoke at the UN for a second time in 1995. It is a notion that brings together the interests of the individual and relates them to the interests of the group. The interests of both the individual and the group concentrate on the ability to exercise their selections about how they wish to live their lives and to be free from the interference and imposition of others. This theme appears in the purposes of the United Nations as identified in the Charter when the founders of the U.N. agreed that the organization was to encourage friendly relations amongst nations “based on respect for the principle of equal rights and self-determination of peoples.”

If making people count is at the center of concern for human rights, it is relevant to take stock of what is at the center of human existence. The theoretical rights to which each person is presumably entitled are exercised in reality through each person’s relationship with others through shared sense of what is due each person, the suum cuique. But, what is due each person depends on what is due others.  Rights are not things unto themselves, but are constitutive elements of human existence which frame the relationships that bring individuals together into the various communities where they live, work, play, learn, worship, deliberate, and govern. The fundamental community as recognized by the central principles of international human rights law is the family—the fundamental unit of society. It is in the family that individuals begin to experience and practice their individual and communal identities. It is in the family where the due of each person begins to develop in the establishing and testing of the extent of rights and responsibilities. As a consequence, it is the family—the basic unit of society and human civilization—which must be protected if human civilization and the basic rights of people are to be protected.

It is in the family where individuals begin to explore who they are and how they relate to one another. It is also in the family where individuals begin to define what is the individual’s right—what is due each person— and what is each member’s duty to accept and respect what is due all others. It is the family where the sense of contribution to both the self and the other takes place where an appreciation of what is each person’s due becomes a norm for daily existence. It is an appreciation of this contribution which is key to the role each individual can and must play in the democratic processes that permeate the notion of self-determination of peoples.

Well, these are just a few thoughts from one who spends a fair amount of his time thinking about sovereignty from the joint perspectives of the social doctrine of the Church and public international law.

 

RJA sj

RJA sj

Thursday, September 3, 2009

Catholic Teaching, Senator Kennedy, and Abortion

By Robert John Araujo, SJ

 

 

This posting is not intended to delve into the subject of Senator Kennedy’s views on a variety of issues. Rather, it is an opportunity to bring to the attention of those who visit this site some relevant information about what may have contributed to Senator Kennedy’s change of position regarding the matter of abortion.

I have been reading Albert Jonsen’s 1998 book The Birth of Bioethics. For those unfamiliar with Dr. Jonsen, he most recently taught at the University of Washington’s School of Medicine. He is a Ph.D. holder who studied religious ethics at Yale University in the mid-1960s. At that time, he was a young Jesuit priest. In 1975 he left both the order and the priesthood and married. He has one of the most interesting and credible accounts of how Senator Edward Kennedy and his brother, Robert, had the occasion to encounter a group of priests who provided information to the Kennedy brothers about ethical views on issues such as abortion.

I will state at the outset that I find many of Dr. Jonsen’s conclusions in his book that I have cited regrettable and inconsistent with Catholic teachings on a number of pressing issues. But these disagreements are not the motivation for writing today. It is his account of a meeting he attended in the summer of 1964 at the famous “Kennedy Compound” in Hyannisport, Massachusetts that I discuss. Jonsen’s invitation to attend the meeting according to his account came by way of Fr. Joseph Fuchs, another Jesuit priest, who had taught moral theology for many years at the Pontifical Gregorian University. Then Fr. Jonsen had met Fr. Fuchs on the campus of the University of San Francisco one summer afternoon. According to Jonsen, Fuchs asked him if he would like to attend a meeting that was to take place on Cape Cod to assist Senator Kennedy who was standing for reelection to hear the views of several Catholic theologians so that he, the Senator, could formulate his political stance on the abortion issue. According to his account, Jonsen accepted the invitation and attended the meeting.

Once they arrived in Boston, Dr. Jonsen states that he and Fr. Fuchs were driven “at breakneck speed” to Hyannisport by Fr. Robert Drinan, another Jesuit who was then the Dean of Boston College Law School. In addition to these three priests, all Jesuits, they were joined by two other priests, Fr. Richard McCormick, a fourth Jesuit, and Fr. Charles Curran, a diocesan priest then teaching moral theology at the Catholic University of America. In attendance at the meeting were Senator Edward Kennedy and Attorney General Robert Kennedy. Dr. Jonsen says that he and Fathers Drinan and Fuchs “struggled with the problem posed to us.” However, in Jonsen’s estimation, Fr. McCormick was “particularly articulate.” Jonsen states that to the best of his recollection the theologians agreed with the Church’s teaching that abortion was immoral but were in further agreement that “a rigorously restrictive ethics of abortion into law was unlikely to be enforceable or to achieve its positive goals without significant attendant social evils.” He does not specify in his book what these “significant attendant social evils” were. Jonsen further contends that the theologians present at the Kennedy Compound on that day favored the American Law Institute’s 1962 draft which would withdraw protection from the fetus (during the first twenty-six weeks of its life) and thus allow abortion when a woman’s health was at risk, the fetus had a severe defect, or the pregnancy was the result of rape or incest. This position they advanced did not then nor does it now coincide with the Church’s teaching.

Fifteen years later, Fr. McCormick elaborated in a 1979 his view that most Americans would say that abortion should be legal if the alternative is tragic but unacceptable if the alternative is “mere inconvenience.” He thought that this approach would justify abortion if the mother’s life were at stake, the pregnancy were the result of rape or incest, or the fetus was deformed. He also stated that such a policy would “completely satisfy no one.”

In his “particularly articulate” statement at Hyannisport, Fr. McCormick relied on the work of Fr. John Courtney Murray, another Jesuit priest who had agreed in his writing with Thomas Aquinas that there exists a necessary distinction between morality and civil law by stating that “it is not the function of civil law to prescribe everything that is morally right and to forbid everything that is morally wrong.” In offering this position, Murray had responded to Cardinal Cushing’s request for help when the Massachusetts legislature was considering liberalizing its laws on artificial contraception. In his response to the Boston archbishop, Murray relied on the Thomistic distinction. However, Fr. Murray was very clear that Catholics were not to assume that they could go along with the liberalization in their exercise of conscience for, as he said,

 

Catholics themselves must be made to understand that, although contraception is not an issue of public morality to be dealt with by civil law, it remains for them a moral issue in their family lives, to be decided according to the teaching of the Church... Catholics might well take this public occasion to demonstrate that their moral position is truly moral, that is, it is adopted freely, out of personal conviction and in intelligent loyalty to their Church.

 

 It would be hard today to judge just what impact the 1964 meeting between Senator Kennedy and these five clerics had on the formulation of the Senator’s position on abortion. As we know, the Senator was still publicly opposed to abortion as late as 1971. But, it would be mistaken to believe that Fr. John Courtney Murray’s views could, when all is said and done, have influenced Senator Kennedy in such a way that he could change his opposition to abortion to support of abortion. It is possible that the clerical sympathy with the ALI 1962 draft law may have eventually had an influence on the Senator’s thinking that enabled him to change his position. But even though Fr. Murray was of the view that not all moral issues must be the subject of laws and legal regulation, surely some are—rape, incest, homicide, theft, and perjury just to mention a few examples. Avoiding conception may for some be a moral issue that ought not to be the subject of legal regulation. I, for one, think that it can and ought to be, but I digress. But to suggest that abortion is another “moral issue” that should also fall outside of the realm of legal regulation is implausible given the context of Fr. Murray’s work. I do not think that John Courtney Murray would have extended the Thomistic principle to this grave moral issue.

I know that Susan Stabile has written on the matter of Murray’s thought in the context of abortion, and she may wish to offer her thoughts on the matter. I also know that a friend of the Mirror of Justice, Fr. Greg Kalscheur, has also addressed this subject. He may hold and present a different view.

But on this note I’ll end for the time being: John Courtney Murray was a gifted individual who understood issues clearly and made distinctions sharply with deep reasoning backing him up. I do not think he would place artificial contraception and abortion in the same moral category for the first prevents life from coming into being; the second, however, destroys a life in being. That is a distinction with a difference, a difference that would have meant much to John Courtney Murray. For me, and I think for Murray, one death brought about by abortion is one too many, and that should be regulated by the law. Compound the matter fifty million times, and all the more reason exists to address this moral evil with a legal response.

 

RJA sj

Wednesday, August 26, 2009

A Response to Susan’s Post

By Robert John Araujo, SJ

 

 

I take this occasion to respond to Susan’s post entitled “Another Response on Homosexuality and Church Teaching.” I appreciate her bringing to the attention of Mirror of Justice readers and contributors the thoughts of her close friend who is in a committed homosexual relationship and who is a former priest. My perspective on many of the points raised by the thoughts and position of her friend as she presented them disagrees with his. While Susan did not specify this in her post earlier today, I am assuming that her friend was formerly a priest in the Catholic Church. While it is implied that he was, no precise identification is made. He does speak of his Christian faith, but so could the Baptist preacher to whom he refers.

But, let me proceed to point out my disagreements with what was presented. I shall assume for the rest of this posting that Susan’s friend was a priest in the Catholic Church—a priest in communion with Rome and the Pope. I, too, am a Catholic priest, so my assumption that Susan’s friend was also a Catholic priest would mean that he and I have or had voluntarily committed ourselves to a vow or promise of chastity with anyone, with anything. The vow or promise does not discriminate and permit some sexual relations but not others. Susan’s friend has indirectly stated that he could not enjoy his sexual relationship and remain in good standing in the priesthood; therefore, he properly left the state of holy orders. I have exercised my free will to continue fidelity to my promises by observing the vows of poverty, chastity, and obedience. Furthermore, as a finally incorporated religious in the least Society of Jesus, I have vowed a further promise of special obedience to the sovereign pontiff in regard to the missions that accord with the apostolic letters and the Constitutions of the same Society. This last vow means obedience in everything which the sovereign pontiff commands and wheresoever he sends one. These are my vows to which I continue to pledge myself seeking God’s help to remain in them with fidelity.

The fact that the ground on which any of us stand may be shifting and roiling is not an excuse not to remain faithful to what one has pledged—the turbulence of our times, or any other time, is not a pretext for not “hanging tight.” Holding on is an option, and it is viable in spite of the challenges that have been presented in the past and continue to be present today and will likely continue in the future. Fidelity is an option for priests, for husbands and wives, and for vowed religious. The fact that challenges exist and are known by the person who remains faithful to what he or she has pledged does not imply that that person is an unthinking, unreflective individual. To the contrary, I believe with the utmost conviction that it takes authentic knowledge and it takes serious reflection to hold on to the belief in Christ and his Church and what she asks of all her members. For some, this is not possible; for others, it is not only possible, it is imperative in spite of the challenges, in spite of the roiling terrain, in spite of what the culture suggests or dictates or forces. To succumb to whatever temptations the present age may offer as a lure is not the option for some who are committed to their vows (as priests, as religious, as married husbands and wives), to their Church, to their faith, or to one another. It would be wrong to assume that only the present age has experienced “cultural transformation.” This transformation—this roiling—has been going on since the beginning of human history. For those who place stock in the doctrine of original sin as I do, cultural transformation has gone on since Eden and continues to the present age. But, cultural transformation is not an excuse, not a justification, not a permission to abandon what a person has vowed in faith, with knowledge, and with reflection. I think God has very much to do with the fidelity of which I speak and little to do with the cultural transformation of which Susan’s friend speaks.

I now come to the Church’s teaching on sexual morality that Susan’s friend also addresses. He asserts “truthfully” that he fails to see “any imperative between core Christian doctrine and its moral teaching.” I am not quite sure what Susan’s friend is getting at here. But I believe he is suggesting that there is no necessary connection between “core Christian doctrine” and the Church’s moral teachings. If this is not his point, I welcome correction so that I may properly address the contention he offers. But if this is his point, allow me to continue. I question the use of the phrase “core Christian doctrine.” Christian doctrine, that is, Christian teaching is Christian teaching that is the teachings of Christ and his Church. To suggest that some of his teachings and those of his Church are essential but others are not is problematic. Christ taught and Christ established his Church—that is what the Church teaches. To argue that some of this body is “core” but other elements of these teachings are not is untenable. It may be tenable for some Episcopalians, for some Anglicans, for some Lutherans, for some Baptists, for some... and this list goes on. But, it is not tenable for the members of the holy, Catholic, and apostolic Church that Christ established and to which he appointed Peter to lead.

Susan’s friend appears to challenge the teaching authority of Peter when he asserts the “compelling philosophical case” he could present against the Magisterium “to infallibly define any moral teaching...” Well, this is an offer for a recipe for chaos. But even more, it is a roadmap to substitute the proper authority of the Church with human caprice. Indeed, Susan’s friend states that individual persons are autonomous moral subjects. Sure, of course they are. But this does not make each person a competent moral authority who possesses solely the ability to determine what is always right and what is always wrong. This is an implementation of the knotty recipe of Casey that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” This is a formula not for morality and moral authority but for disorder and exaggerated autonomy. Making arguments from the moral authority of the Church holds much interest for me, even if it does not for Susan’s friend, because in her (the Church’s) moral teachings the Church shows us the way forward to promote the common good and to avoid the disasters to which Casey’s “heart of liberty” will lead.

I am saddened by Susan’s friend’s remarks about tradition. Indeed, there exist traditions that ought to change, e.g., hazing that goes on in schools. But, there are traditions that are the product of thought, of critical examination, of intense reflection, and of the test of time. If we move away from orthodoxy and tradition, what are the justifications for the move? Susan’s friend suggests that it would be some hope for what happened at Vatican II. Well, what happened at Vatican II is easily accessible by any of us. Many of us often hear about the “spirit of Vatican II.” The spirit of Vatican II is also accessible in what the Council gave us—its texts. While the texts may be reasonably interpreted, the texts remain and they cannot bear many of the interpretations that are offered in the “spirit of Vatican II.” These interpretations of the “spirit” are and will remain unintended and, therefore, unacceptable corruptions of the work of the Council. I periodically reread the main documents of the Council such as Lumen Gentium and Gaudium et Spes and Dignitatis Humane Personae to remind myself of what the Council actually did and say. May I recommend this procedure to others?

Finally, Susan’s friend returns to the issues of moral teaching on sexual issues and suggests that this is a flashpoint of “the profound cultural transformation in whose wake we live.” He and I have already talked about “cultural transformation.” But, when all is said, should sexual morality be determined by passionate appetite? Where is the intellect in this? Where is the reason? Where is the reflection? Where is the thinking? From what Susan’s friend states, these important attributes of the human person are unimportant or irrelevant or secondary since “it’s all about sex, after all.” Is it really? Is that the ultimate function, the final attribute, the quintessence of the human person? I thought it was about destiny with God, seeing Him one day.

Susan’s friend confesses his offense to the suggestion that anything dealing with his relationship with his partner or “even his delight in the male physique” is antithetical to his Christian faith. Well, he and I disagree on this. But, it is clear he and I also share a common ground. We are both sinners—for we are all sinners. Our faith informs us of this, our faith that he is willing to concede on some fronts but dismiss on others. But our faith in Christ, in God, in the Holy Spirit, in the Church also leads us to redemption. And so I end this posting today with the wisdom of Christ from the Gospel of Saint John. When Jesus met the woman who sinned and who was about to be stoned to death, Jesus intervened. Why? He intervened because he saw the opportunity for redemption of both the woman who had sinned and the crowd that was intent on stoning her to death. No one condemned her, and neither did Jesus—the one who could. But that is not the end of the lesson, for our Lord reminded the woman to go without condemnation but to go and sin no more.

So be it with her; so be it with us. May we ask our merciful God for openness to His guidance and the accompaniment of the Holy Spirit to labor, with His grace, to sin no more.

 

RJA sj

Vatican II—Type People (including politicians [including Presidents])

By Robert John Araujo, SJ

 

Like Rick, I am not sure what a Vatican II—type politician, including the President, is. I think the rich teachings of the Church give us ample material from which the correct portrait of the public official who follows right reason emerges. When it comes to some of the pressing issues of the day, this element of the Pastoral Constitution of the Church in the Modern World (N. 27) provides essential attributes:

 

Furthermore, whatever is opposed to life itself, such as any type of murder, genocide, abortion, euthanasia or wilful self-destruction, whatever violates the integrity of the human person, such as mutilation, torments inflicted on body or mind, attempts to coerce the will itself; whatever insults human dignity, such as subhuman living conditions, arbitrary imprisonment, deportation, slavery, prostitution, the selling of women and children; as well as disgraceful working conditions, where men are treated as mere tools for profit, rather than as free and responsible persons; all these things and others of their like are infamies indeed. They poison human society, but they do more harm to those who practice them than those who suffer from the injury. Moreover, they are supreme dishonor to the Creator.

 

It would seem that this authoritative guidance of a Vatican II—type person applies to anyone, be one the holder of public office or the private citizen. It is hard to imagine how anyone who advocates abortion “rights” or “death-with-dignity” (i.e., euthanasia) could be considered a Vatican II—type politician.

 

RJA sj

Tuesday, August 18, 2009

The case of Belmont Abbey College

By Robert John Araujo, SJ

 

 

Thanks to those who have begun to address the situation involving Belmont Abbey College and the EEOC proceedings regarding “reproductive health” coverage and the alleged “discrimination” suffered by those employees of the college who desire “medical services” that conflict with the teachings of the Church. I would think that most if not all of us share Susan’s lament. So, where might Catholic Legal Theory go with this issue? Perhaps at this stage with a simple but important identification of the problem.

In other fora and here at the Mirror of Justice, I have raised the question of the new totalitarian state from time to time. In essence, I take the position, as did Christopher Dawson in the 1930s, that the western democracy, including the United States, harbors totalitarian potential. The case of Belmont Abbey College reinforces this point. The college’s president, Dr. William Thierfelder, has noted that the college is not telling anyone how to live their lives; however, it is now clear that the EEOC and the “public interest groups” assisting the complainants are telling Belmont Abbey College what it can believe and what it cannot—how it is to live its life if you will.

The complainants and their counsel see but one kind of “discrimination”—that which will not cooperate with a malignancy that knows no limit. The malignancy of which I speak is the kind of totalitarianism that Dawson once said “demands full cooperation from the cradle to the grave.” The fact that the EEOC position discriminates against the Catholic position is immaterial. The right to contraception, abortion services, and the full panoply of “reproductive health services” is not at stake. What is at stake is the right of a Catholic institution to be and remain Catholic and not join the stable of “post-Catholic” institutions.

Dawson warned that the western democracy sooner or later could join the club of totalitarian states if it insisted on policies that “pushed [the Catholic institution] not only out of modern culture but out of physical existence.” He hastened to add when he wrote these words many years ago that this crisis was the reality in Communist countries “and it will also become the issue in England and America if we do not use our opportunities while we still have them.” I suspect that some of these thoughts entered the mind of John Courtney Murray when he discussed the all-or-nothing approach instilled by the French Revolution in his seminal 1952 article “The Church and Totalitarian Democracy.”

In November of last year, many Americans decided to vote for change. Let us hope and pray that one change will be in the policies that promote the objective that some of our fellow citizens are intent on pursuing: the eradication of the Catholic perspective and Catholic life from these shores.

 

RJA sj

 

Saturday, August 15, 2009

Professor Amos Guiora and Public Religion

By Robert John Araujo, SJ

 

 

Thanks to Rob for bringing to our attention Professor Amos Guiora’s interesting essay entitled Religious Extremism: A Fundamental Danger. I have not been successful in downloading the entire essay as I have had problems in working with the SSRN website since moving to Chicago. However, I have been able to read Professor Guiora’s abstract which Rob has kindly posted.

As one interested in Catholic Legal Theory and in religious liberty and libertas ecclesiae, I find some of the professor’s claims troubling. As Rob notes (and I concur looking at Professor Guiora’s areas of proficiency), the author does not appear to claim expertise in religious liberty. Nonetheless he makes some remarkable points about religious liberty that need to be challenged and to which reasoned response must be given.

First of all, Professor Guiora does not seem to make the distinction between religious teachings and individuals who claim to be followers of religious teaching. My point here is that it is quite easy to blame a particular faith rather than the followers of a faith who misinterpret and misapply its teachings. I think that the author makes a legitimate point in being concerned about terrorism and terrorist acts that claim to rely on religious views. However, clarity is needed in the argument distinguishing between the tenets of a faith versus followers of a faith who decide on their own that belief in God entitles them to pursue harsh, uncalled for, and unacceptable acts against their neighbors.

Second, it appears that at best Professor Guiora wishes to privatize religion and strip it of any public role whatsoever. In my estimation, this is unwarranted. Professor Guiora asserts that “Private religion [which he defines elsewhere] is the ideal articulated by the American Founding Fathers.” Like Rob, I disagree with this conclusion. But let us assume for the moment that the Guiorian thesis has support within some segments of the American Republic. Is this a good and correct position to advance?

I for one do not think so. I am now reading a fascinating book published in 1939 by Nathaniel Micklem who was the Principal of Mansfield College, Oxford entitled National Socialism and the Roman Catholic Church. I do not want to be mistaken by anyone that I think Professor Guiora adheres to the beliefs of National Socialism—for that would be a strange position to advance if one takes stock of the fact that Professor Guiora dedicated nineteen years of his life to serving in the Israeli Defense Forces. However, as Christopher Dawson has reminded us, even persons who hold high democratic ideals can reflect views that are synonymous with those advanced by totalitarian systems, especially when it comes to religious perspectives and the proper role of religion and religious believers in public life. Professor Micklem draws our attention to a speech delivered by Adolph Hitler in 1935 in which Hitler was doing all within his power to privatize religion and silence the believer in any public manifestation of faith. Micklem quotes Hitler saying:

Neither in earlier times nor today [1935] has the Party the intention of waging any kind of war against Christianity. But under no circumstances will the National Socialist State tolerate the continuance or fresh beginning of the politicizing of the denominations by roundabout ways. Here let there be no mistake about the determination of the Movement and the State. We have already fought political clericalism once and driven it out of Parliament, and that, too, after a long struggle, in which we had no power of the State behind us, and the other side had all the power. Today it is we who have this power; and we shall never wage the war as a war against Christianity or even against one of the two denominations; but we shall wage it in order to keep our public life free from those priests who have fallen short of their calling, and who think they have to be politicians, not pastors of the flock.

I do not believe that the Founding Fathers were intent on doing away with public religion, nor do I think that the religious person is engaged in erroneous activity by engaging roles in public life which some may conclude is the exclusive preserve of “politicians.” To conclude that the Establishment Clause requires this, as Professor Guiora seems to imply, is a grave misstep. To further conclude, as Professor Guiora does, that the “vulnerable non-believer” can be protected only by removal of religion from the public square is to borrow from the tactic of the totalitarian. It would be mistaken to conclude that the supporter of democracy would also adhere to and advance the same view.

 

RJA sj

Thursday, August 13, 2009

Some thoughts about human nature

By Robert John Araujo, SJ

 

 

I begin this entry by thanking Michael Scaperlanda for his posting earlier today bringing to our attention the quotation from Kingsley Martin on human nature: “The clue to the political thought of any period lies in the conflict between various views of human nature.”

I for one would agree that such a sentiment, i.e., the conflict of various views of human nature, has fueled the development of political thought across the centuries. But I think that today we are seeing some evidence of a change—a change that I suggest does not necessarily mean something better regarding conflicts in political thought. This past year I offered a course at Boston College Law School entitled “Natural Law and Natural Rights.” I shall be offering the course again this year in a new venue, Loyola University Chicago.

During the discussions that took place at Boston College, I was surprised to see the degree to which some young, energetic, and clever minds quickly dismissed the existence of the concept which is called “human nature.” It struck me then, and it still does today, that if one does not consider that there is such a thing as human nature, there cannot be conflicts between or among differing views of that which is denied.

Here is a challenge for those interested in Catholic Legal Theory and its development. Are we—those who are presumably doing something to enhance CLT—doing enough to investigate with our students, colleagues, and anyone else we encounter the idea of human nature. It seems for the longest time that the Catholic intellectual tradition was quite interested in studying, discussing, and investigating further human nature and the essence of the human person. After all, discussions about essence and nature had long been a part of the important studies that took place in Catholic educational institutions. But, have we reached the stage that these sorts of inquiry no longer merit sufficient interest to continue their examination?

If so, then I think we face a dark future where offering an answer to the question what is constitutive of human nature can escape a purely subjective explanation about who or what the human person is. This is not the same issue presented by the conflict of various views of human nature. The issue now seems to be whether there are sufficiently universal characteristics about human beingness to indicate that there is an essence, a nature about humans that can supply an idea, theory, or concept of “human nature.”

As a way of beginning to address this issue, assuming that it is of sufficient interest to others, may reside within the thought of Jacques Maritain. Some years ago, in 1943 to be more precise, Maritain began wrestling with work that would lead him to chair the UNESCO committee advising the drafting committee that would produce the Universal Declaration of Human Rights. In his own contribution, Maritain raised an important initial question about whether man was a means to an end or an end in himself or herself. He answered his own question by suggesting that there are things due to the person purely on the basis that he or she is man. If Maritain was on to something, and again I suggest that he was, would his thinking provide some resolution to how the conflict between various perspectives on human nature is to be settled knowing that there is an essence or nature about being human?

 

RJA sj

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