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, July 31, 2009

The Feast of St. Ignatius of Loyola

By Robert John Araujo, SJ

To readers and contributors of the Mirror of Justice, a blessed feast of Saint Ignatius of Loyola! May his company of Jesus be faithful to the vocation of the least Society of Jesus.

Saint Ignatius, pray for us! May Mary, the Mother of God, patroness of the least Society of Jesus and Mirror of Justice, pray for us!


 Seal of SJs


RJA sj

Tuesday, July 28, 2009

English Translation of the International Theological Commission text on the Natural Law

By Robert John Araujo, SJ

In previous postings, I have commented on the International Theological Commission's recent paper entitled "The Search for Universal Ethics: A New Look at the Natural Law." A while back I offered a synopsis of the text. While no official English translation exists yet, Joseph Bolin, a seminarian pursuing a doctorate in theology in Austria, has made available a fine English Translation which can be read here. I hope hat we'll be able to have some exchange of ideas on the ITC paper thanks to Joseph's great work! We are in his debt since his labor makes this important document available to a wider readership, and I wish to thank him personally for enabling the Mirror of Justice readership to have access to his translation.

RJA sj

Thursday, July 16, 2009

Peter Singer on Health Care Rationing

By Robert John Araujo, SJ

 

 

This coming Sunday’s The New York Times Magazine, July 19, will have a fascinating article on the rationing of health care authored by Princeton University’s Ira W. DeCamp Professor of Bioethics Peter Singer. The article is HERE —“Why We Must Ration Health Care.” It seems that the web version of The New York Times is now taking to publishing some articles in advance of their paper publication dates. One other illustration is that presented on the Mirror of Justice several days ago regarding the early release of the substantial interview with Justice Ruth Bader Ginsburg that was released a number of days before the confirmation hearings of Judge Sonia Sotomayor for her consideration as an associate justice of the United States Supreme Court. [HERE for more information]

I find it interesting that as the Congress appears to be pushing through legislation on expanding health care coverage—a fine idea in principle—we are treated with this remarkable essay in public policy that advocates rationing health care by Professor Singer. As some readers of MoJ may recall, Peter Singer is an advocate for many problematic positions such as granting “personhood” to animals while at the same time arguing for the justification for the killing of newborn human babies; but he has also advocated on behalf of “ethical” eating by people—so if carnivores eat meat, what do humanitarians eat? But I digress.

In the article to which I have given the link, Professor Singer is not questioning if health care should be rationed, he is advocating that it be rationed. As an aside, I wonder what kind of health care plan he is on at Princeton, but I digress again.

Singer is astute enough not to raise questions that are too personal. Moreover, he offers some insightful points regarding particular issues. He supports allowing a person to spend his or her individual resources on expensive health care, but he poses his argument in the context of how someone with a questionable longevity because of serious illness who is a member of your health-insurance fund should be treated by the fund to which you, I, and anyone else may also contribute. As it turns out, he is not asking how much should the fund spend on caring for this individual; rather, he is asking how much is this person’s life worth? But he cleverly poses the issue this way:

 

You have advanced kidney cancer. It will kill you, probably in the next year or two. A drug called Sutent slows the spread of the cancer and may give you an extra six months, but at a cost of $54,000. Is a few more months worth that much? If you can afford it, you probably would pay that much, or more, to live longer, even if your quality of life wasn’t going to be good. But suppose it’s not you with the cancer but a stranger covered by your health-insurance fund. If the insurer provides this man — and everyone else like him — with Sutent, your premiums will increase. Do you still think the drug is a good value? Suppose the treatment cost a million dollars. Would it be worth it then? Ten million? Is there any limit to how much you would want your insurer to pay for a drug that adds six months to someone’s life? If there is any point at which you say, “No, an extra six months isn’t worth that much,” then you think that health care should be rationed.

 

He then launches into the current debate in the Congress over “health care reform” and adds that the term “rationing” has “become a dirty word.” He notes that this is what “sank the Clinton’s attempt to achieve reform.” And so, he promotes a questionable method of calculating the value, and therefore the worth of saving specific human lives. In essence, the approach he utilizes to do this is a utilitarian one. As he argues:

 

multiplying what we would pay to reduce the risk of death by the reduction in risk lends an apparent mathematical precision to the outcome of the calculation — the supposed value of a human life — that our intuitive responses to the questions cannot support. Nevertheless this approach to setting a value on a human life is at least closer to what we really believe — and to what we should believe — than dramatic pronouncements about the infinite value of every human life, or the suggestion that we cannot distinguish between the value of a single human life and the value of a million human lives, or even of the rest of the world. Though such feel-good claims may have some symbolic value in particular circumstances, to take them seriously and apply them — for instance, by leaving it to chance whether we save one life or a billion — would be deeply unethical.

 

But is he really talking about reform, or is he, in fact, determining that someone else—be it individuals (e.g., Peter Singer), lobbies, medical insurers, the government, etc.,. will be authorized and empowered to make decisions on whether an ailing individual shall receive some, any, or no health care if that someone else decides that the individual’s—that your life—is not worth living or at least not worth prolonging.

I frankly think that most people today voluntarily chose not to prolong unduly this physical life by long-term and expensive therapies that have little promise of success. They recognize that their life in this world is coming to an end and, for many, it is now time to go home to God. I find myself frequently addressing this very issue. But this is not something of which Professor Singer takes stock since his approach disregards the possibility that people realize that while their life is valuable, it does not make sense to pursue costly therapies and medications that offer little hope for benefiting their physical life. For him, their moral agency appears not to exist, and if it does, it does not mean much to him. Not only does he want to be the moral agent for himself, he wishes to be the “moral” agent for everyone else from what he says. Here is how he begins to pitch his argument regarding this:

 

Remember the joke about the man who asks a woman if she would have sex with him for a million dollars? She reflects for a few moments and then answers that she would. “So,” he says, “would you have sex with me for $50?” Indignantly, she exclaims, “What kind of a woman do you think I am?” He replies: “We’ve already established that. Now we’re just haggling about the price.” The man’s response implies that if a woman will sell herself at any price, she is a prostitute. The way we regard rationing in health care seems to rest on a similar assumption, that it’s immoral to apply monetary considerations to saving lives — but is that stance tenable?

 

But we are not talking about jokes, as crude as the one that he uses. We are talking about human life and why it is worth protecting in conformity with the wishes that most people are able to make in reliance on what good moral medical advice that is not swayed by monetary loss or gain advises. Indeed, health care can be an expensive resource, as Singer adds. But human life is a precious one that should never be discarded. The fact that the violent-prone person may find human life cheap does not mean that the rest of humanity should follow suit, especially when they hold distinguished chairs in bioethics at influential universities.

It becomes evident that Professor Singer is inclined to ration health care for some—especially the poor or the uninsured. The fact that one is poor or uninsured does not support the conclusion that they have nothing to give others. Thus, the professor reminds us that for many who are not “poor,” health care is paid for or substantially co-paid for by employers for whom contributions are tax-deductible. But for the unemployed or those employed but without employer-paid benefits including medical insurance, Singer is most willing to ration health care without hesitation. If you doubt this, here is what he says:

 

The case for explicit health care rationing in the United States starts with the difficulty of thinking of any other way in which we can continue to provide adequate health care to people on Medicaid and Medicare, let alone extend coverage to those who do not now have it. Health-insurance premiums have more than doubled in a decade, rising four times faster than wages. In May, Medicare’s trustees warned that the program’s biggest fund is heading for insolvency in just eight years. Health care now absorbs about one dollar in every six the nation spends, a figure that far exceeds the share spent by any other nation... President Obama has said plainly that America’s health care system is broken. It is, he has said, by far the most significant driver of America’s long-term debt and deficits. It is hard to see how the nation as a whole can remain competitive if in 25 years we are spending nearly a third of what we earn on health care, while other industrialized nations are spending far less but achieving health outcomes as good as, or better than, ours.

 

But, is this really true? Do other nations in fact have better health outcomes? Elsewhere, Professor Singer questions his own assertion by stating that while rationing is practiced by other industrial nations whose practices the American people and its servant government should admire and emulate, he admits that there are significant problems in these other systems. Getting good value for professional services and medications is not the issue. What is the issue is really identified by Professor Singer: what will the market bear in providing a service or a medication?

As he concedes,

Pharmaceutical manufacturers often charge much more for drugs in the United States than they charge for the same drugs in Britain, where they know that a higher price would put the drug outside the cost-effectiveness limits set by NICE [the British government-financed organization that provides national guidance on treating illnesses].

 

It would seem from what Professor Singer concedes that the problem is not the need to ration health care. The problem, rather, is this: why does the cost of health care in one venue dramatically differ from another venue for the same service and the same medications. Perhaps the question that Congress should be really focusing on is just that, and it would be better off to put aside the arguments for rationing. Rationing is a device used when goods and services are in short supply. Rationing is not a device that should be used when goods and services are available but their costs are based not so much on reason but on caprice or the whims of a particular market. I would think that Catholic Legal Theory is very much interested in how laws are made and why they are made in the fashion that they are. In the context of what Congress is now doing regarding health-care in the United States, the question should not be on availability but on the pricing mechanisms that have a disproportional impact on what determines the cost of services and medications that are available but may or may not be affordable.

As I have mentioned, Professor Singer’s concern is really not with any of this but with what he views as the value of human life. As he reaches the end of his essay, he states:

 

The dollar value that bureaucrats place on a generic [my emphais] human life is intended to reflect social values, as revealed in our behavior. It is the answer to the question “How much are you willing to pay to save your life?” — except that, of course, if you asked that question of people who were facing death, they would be prepared to pay almost anything to save their lives. [As I have stated earlier in this posting, I question the validity of this claim.] So instead, economists note how much people are prepared to pay to reduce the risk that they will die. How much will people pay for air bags in a car, for instance? Once you know how much they will pay for a specified reduction in risk, you multiply the amount that people are willing to pay by how much the risk has been reduced, and then you know, or so the theory goes, what value people place on their lives.

 

I think most people do make these kinds of decisions with regard to some issues but not when it comes to the major question about the end-of-life that emerges from realizing the inevitable destiny we all face. Singer attempts to cast his argument not as an economic one but as an ethical one. But he fails in this regard when he tries to distinguish between the teenager who is a violent criminal and the octogenarian who is still a productive member of society. As he asserts: “But just as emergency rooms should leave criminal justice to the courts and treat assailants and victims alike, so decisions about the allocation of health care resources should be kept separate from judgments about the moral character or social value of individuals.” Professor Singer tries to get around this problem he has generated by concluding that health care is more than just saving lives; it is about reducing pain and suffering. His solution: ration health-care.

I for one believe his solution is flawed and that the Congress must recognize that rationing is not the solution but a problem that is easily avoided. The real issue that must be acknowledged and addressed is that the pricing schemes for medical services and pharmaceuticals; and the solution rests with bringing reason and fair pricing to what is charged for them to the person who can pay, the person who can pay with insurance, and the person who cannot pay but relies on public or charitable assistance. Regardless of who the individual is, he or she has a life that is worth living. If the treatment is available and will do good for that person, it should be made available. But if the treatment is one that will provide little benefit, the patient himself or herself, with objective medical counsel and support of fellow human beings and the availability of palliative care will probably reach a judicious decision and prepare to meet the one from whom his or her life was given.

 

RJA sj

Tuesday, July 14, 2009

The Status and Value of Stare Decisis

By Robert John Araujo, SJ

 

 

 

With the nomination hearings of Judge Sonia Sotomayor to fill the vacancy on the United States Supreme Court underway, it is inevitable that the issue of stare decisis will eventually be addressed. Judge Sotomayor has anticipated the inevitability by raising in her introductory remarks the primary duty of a judge to fidelity to the law. That is a wonderful expression—fidelity to the law. But what does it mean? I have thought about this critical matter that must be of interest to Catholic legal theorists over the past few days. In order to clarify my own thinking about fidelity and the role of stare decisis, I have come up with a hypothetical line of questions to a judicial nominee and some possible answers.

 

Senator X:

Judge, we all recognize that fidelity to the law must respect the principle of stare decisis, but from your perspective do they mandate strict adherence to past decisions of the Supreme Court of the United States?

 

Judicial Candidate:

Clearly, Senator, fidelity to the law and respect for the principle of stare decisis are and must remain vital elements of the role law must have in our juridical institutions and the rule of law in our society. They ought not to be tampered with in most circumstances without good reason for doing so.

 

Senator X:

Yes, Judge, but does a judge who possesses the jurisdictional competence to do so have any latitude for altering the impact of judicial precedents? Isn’t there a very strong presumption that precedents are valid and must not be tampered with under the doctrine of stare decisis?

 

Judicial Candidate:

Senator, you ask a most probing set of questions. I shall do my best to respond to each. But let me begin by stating that a federal judge is a member of a coordinate and equal branch of the national government. While a judge’s principal responsibilities differ from those of the Congress or the Executive branch, a judge also shares in the duty to uphold the Constitution of the

United States

. This means there must be respect for the law and its rule. However, this does not preclude a member of the judiciary or a court consisting of several judges to refrain from examining the strength and integrity of the judicial precedents that apply to the case under consideration. A judge must always look at them with an eye that is attuned to the role of reason and the role of facts in establishing, maintaining, or modifying any precedent. A judge must test the principles that are or appear to be applicable to the case in a fashion that places significance on the essential facts and the reasons for applying a legal principle to those facts. A judge must ask: does the principle, the precedent still achieve the objectives for which it was intended to accomplish and what is the legitimacy of such objective?

 

In short, our legal system is premised upon reason. Reason and its objectivity formulate the legal principles that come together to form the fabric of the law and the need for fidelity to it. But this does not mean that fidelity to the law and stare decisis preclude changes in the law. The legal system we enjoy in this country has evolved since its inception, and the fact of evolution of the law more than suggests the role of change consistent with fidelity and the coherence that is at the core of the rule of law.

 

Otherwise, Senator, we would not have the ability to ensure that the law is premised on the soundest reasoning that properly acknowledges the role of facts that emerge in the cases that come before judges. The law is established for the long-term. It is or should be laden with objectivity and moral purpose. It should not be compromised by whim or caprice. It must serve both the individual and the society well being tempered with firmness, mercy, and truth about the human condition. It cannot be merely the will of the law maker, the judge, or some constituency that will profit from a particular result without consideration given to the impact that the law and its interpretation will have on all whose lives and welfare are affected.

 

Senator X:

So,Judge, are you saying that a judicial officer is at liberty to depart from precendent?

 

Judicial Candidate:

For sound reasons as I have defined and explained tested by fact, yes.

 

Senator X:

Then, Judge, you’d be willing to see the “legal fabric” as you call it be altered!

 

Judicial Candidate:

Yes, for good reasons that serve well one and all tested by fact.

 

Senator X:

By what authority can you do such a thing?

 

Judicial Candidate:

By the Constitution of the United States and the oath of office we share as officials appointed or elected to uphold it.

 

Senator X:

But, Judge, from what you are saying then, is there not a threat to fidelity of which you spoke and the overwhelming significance of judicial precedent?

 

Judicial Candidate:

Senator, with the greatest respect to our Constitution and the need to preserve, protect, and defend it, we must all recognize that unwise or unsound law can be made by judges and legislators. This is why our system allows for Congressional override of judicial decisions, and it also enables judicial review of Congressional and legislative actions. The common denominator underlying each of these actions is a Constitutional empowerment based not on whim or caprice but on sound reasoning. Otherwise, Senator, we’d still be a land of law in which precedents such as Dred Scott and Plessy and rationales such as Korematsu still prevail.

 

 

Any thoughts?

 

RJA sj

 

Saturday, July 11, 2009

A follow-up to Michael

By Robert John Araujo, SJ

 

 

Thanks to Michael Perry who has brought our attention to The New York Times article posted this afternoon regarding President Obama’s stirring speech given to the Ghanian Parliament. As Michael’s reference to the speech itself and to The New York Times article about it point out, the President noted that responsibility for the plight of Africa and its salvation does not rest with particular forces solely outside of Africa or inside.

 

Earlier today our President stated that,

Now, it's easy to point fingers and to pin the blame of these problems on others. Yes, a colonial map that made little sense helped to breed conflict. The West has often approached Africa as a patron or a source of resources rather than a partner. But the West is not responsible for the destruction of the Zimbabwean economy over the last decade, or wars in which children are enlisted as combatants. In my father's life, it was partly tribalism and patronage and nepotism in an independent Kenya that for a long stretch derailed his career, and we know that this kind of corruption is still a daily fact of life for far too many.

 

It may well be that the President has been listening to and taking stock of what the Pope, the Holy See, and those who represent it have been proposing for some time. For example, in 2007, the Holy See, through its Permanent Observer to the United Nations, offered parallel thoughts to those issued by the President today. In particular, Archbishop Celestino Migliore stated behalf of the Holy See and Pope Benedict that,

The international community is called to assist African countries develop policies that promote a culture of solidarity, so that their economic development may go hand in hand with integral human development. On the other hand, good governance and institution-building efforts, correct use of aid and anti-corruption measures are primary responsibilities of the recipient countries and are essential if international aid is to bear fruit.

 

I am certain we all share Michael’s pride in and endorsement of the President’s stirring remarks presented today in Ghana. But let us also acknowledge that some of his efforts to achieve good in the world, especially in those places most in need of it, have been preceded by those of others including the Roman Catholic Church and her exhortations over the years that have brought attention to the plight and promise of Africa. As we applaud the President, so, too, must we applaud those who have gone before in efforts to achieve the same noble goals for the betterment of humanity.

 

RJA sj

Thursday, July 9, 2009

One woman and judge’s view

By Robert John Araujo, SJ

 

 

 

This coming Sunday’s The New York Times Magazine will publish an interview with Justice Ruth Bader Ginsburg entitled The Place of Women on the Court. [HERE] In part, it offers her exhortation encouraging the confirmation to the Supreme Court of Judge Sonia Sotomayor. In part, it is a revealing insight into the kind of woman, person, and human being that are Ruth Bader Ginsburg.

 

Inevitably, questions about abortion and the law and Constitutional issues dealing with this issue surfaced during the interview. The following exchange between Justice Ginsburg and the interviewer divulges a great deal about the kind of woman, person, and human being that Ruth Bader Ginsburg is:

 

Q: If you were a lawyer again, what would you want to accomplish as a future feminist legal agenda?

 

JUSTICE GINSBURG: Reproductive choice has to be straightened out. There will never be a woman of means without choice anymore. That just seems to me so obvious. The states that had changed their abortion laws before Roe [to make abortion legal] are not going to change back. So we have a policy that affects only poor women, and it can never be otherwise, and I don’t know why this hasn’t been said more often.

 

Q: Are you talking about the distances women have to travel because in parts of the country, abortion is essentially unavailable, because there are so few doctors and clinics that do the procedure? And also, the lack of Medicaid for abortions for poor women?

 

JUSTICE GINSBURG: Yes, the ruling about that surprised me. [Harris v. McRae — in 1980 the court upheld the Hyde Amendment, which forbids the use of Medicaid for abortions.] Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.

 

Q: When you say that reproductive rights need to be straightened out, what do you mean?

JUSTICE GINSBURG: The basic thing is that the government has no business making that choice for a woman.

 

Q: Does that mean getting rid of the test the court imposed, in which it allows states to impose restrictions on abortion — like a waiting period — that are not deemed an “undue burden” to a woman’s reproductive freedom?

 

JUSTICE GINSBURG: I’m not a big fan of these tests. I think the court uses them as a label that accommodates the result it wants to reach. It will be, it should be, that this is a woman’s decision. It’s entirely appropriate to say it has to be an informed decision, but that doesn’t mean you can keep a woman overnight who has traveled a great distance to get to the clinic, so that she has to go to some motel and think it over for 24 hours or 48 hours.

 

I still think, although I was much too optimistic in the early days, that the possibility of stopping a pregnancy very early is significant. The morning-after pill will become more accessible and easier to take. So I think the side that wants to take the choice away from women and give it to the state, they’re fighting a losing battle. Time is on the side of change…

 

I have emphasized two portions of the Justice’s response to different questions about abortion. Her two answers, in one sense, do not seem to be consistent with one another. On the one hand, she viewed Roe as the means of controlling population, “particularly growth in populations that we don’t want to have too many of.” I wonder what are those populations “that we don’t want to have too many of”? On the other hand, she asserts that the government has no role in making decisions about a woman’s “reproductive rights.” But, if she means that the state has no role in stopping a woman from having an abortion for any reason or no reason, then the two statements become more coherent with each other. In any case, she did not retract her views about population control and using government moneys to fund abortion—for that would not take away women’s “reproductive rights.” It seems that from her perspective, “reproductive rights” and population control may not be in conflict with one another. And, if this is indeed the case, we have learned a great deal about what kind of woman, person, and human being Ruth Bader Ginsburg is.

 

RJA sj

Tuesday, July 7, 2009

Caritas in Veritate

By Robert John Araujo, SJ

 

 

Thanks to Michael S. for posting the Pope’s new encyclical Caritas in Vertate, which was released earlier today in Rome. The first thing worth noting about it is this encyclical is addressed to all the faithful, the People of God, and all men and women of good will. In contrast, Deus Caritas Est, his first encyclical, was addressed only to the members of the Church—clerical, religious, and lay faithful. And his second encyclical, Spe Salvi, was similarly addressed. However the social encyclical addresses a much larger, perhaps even universal, audience.

After a brief introduction, the structure of the encyclical letter is formulated around six primary sections: the first reexamines the significance of Paul VI’s 1967 encyclical Populorum Progressio; the second considers the issue of human development in “our time”; the third concentrates on the interrelated issues of fraternity, economic development, and civil society; the fourth investigates together several matters dealing with the development of people, their rights and duties, and the environment; the fifth considers cooperation within the human family; and, the sixth studies the development of peoples within the framework of technological developments. As is typical, an integrating conclusion winds up the encyclical. I will offer a brief and, most likely, too broadly painted commentary on each of these components:

 

The Introduction

Here Benedict emphasizes the nexus between “charity in truth” and the witness given by Christ in his earthly life. The Pope states that the driving force for authentic development of every person and the common good is love—caritas—exemplified by Jesus Christ. And it is this love that Christ taught that is the truth that underpins authentic human progress. Moreover, it is this love and the truth about it that are central to the Church’s social teachings. But if charity and truth are not inextricably linked, each can become a distortion of its authenticity. As the Holy Father states, “Truth needs to be sought, found and expressed within the ‘economy’ of charity, but charity in its turn needs to be understood, confirmed and practised in the light of truth.” [N. 2] He goes on to say, “In the truth, charity reflects the personal yet public dimension of faith in the God of the Bible, who is both Agápe and Lógos: Charity and Truth, Love and Word.” [N. 3] Within this idea is the meeting of the individual and the other wherein the personal and the common goods intertwine. A final important element of this rich introduction is this point which the Holy Father has raised elsewhere in his exhortations about the relation between the Church and civil society, including the State: “The Church does not have technical solutions to offer and does not claim ‘to interfere in any way in the politics of States.’ She does, however, have a mission of truth to accomplish, in every time and circumstance, for a society that is attuned to man, to his dignity, to his vocation.” [N. 9] The Pope then turns to his consideration of Paul VI’s encyclical On the Development of Peoples.

 

The encyclical Populorum Progressio

The first thing that Benedict does in this section is to emphasize the continuity among his encyclical, that of Paul VI, and the social teachings of the Church. Even though new issues may emerge in the human condition with the passage of time, the Church’s teachings are still rooted in the eternal wisdom of God. As Benedict phrases it, the “truth of the faith, namely that the Church, being at God's service, is at the service of the world in terms of love and truth.” [N. 11] This certainty, he continues, is based on two points: (1) the Church is and must be engaged in promoting integral human development, and (2) authentic human development concerns the whole of the person uniting all single human dimensions. In short, it is essential to see human existence as the integration of physical and eternal life. Without this crucial synthesis being appreciated, human development and human existence are at the mercy of the prevailing and dominant influences of human history. While Benedict emphasizes continuity in the Church’s teachings, he characterizes it in this fashion: “Coherence does not mean a closed system: on the contrary, it means dynamic faithfulness to a light received.” [N. 12] While Benedict raises many important issues in this segment, he emphasizes the meaning and value of human life that are essential to true human development. Without recognition of the essence of the human person and human life, any theory of “human development” or “human progress” will be deficient.

 

Human development in “our time”

This segment of the encyclical again relies on the work and analysis of Paul VI and acknowledges the essential interrelation of the challenges to physical human development (health, economy, and social relations) and the truth of human nature and the essence of human existence. This interrelationship has been increasingly challenged by the physical “progress” of human society which evolves from the fragmentation of human wisdom. As Benedict proposes, “We recognize, therefore, that the Church had good reason to be concerned about the capacity of a purely technological society to set realistic goals and to make good use of the instruments at its disposal.” [N. 21] These challenges are intensified when “profit” rather than “authentic development” define progress. Here he illustrates well his point by examining in some depth the current global economic crisis. For a remedy to this crisis, the Pope exhorts that “progress of a merely economic and technological kind is insufficient. Development needs above all to be true and integral.” [N. 23] As he notes further, combating this challenge is within the competence of the human person, society, and the institutions they develop. The failure to meet and overcome the challenges that face the world today can be traced to the absence of love and truth. As he states, “There is always a need to push further ahead: this is what is required by charity in truth. Going beyond, however, never means prescinding from the conclusions of reason, nor contradicting its results. Intelligence and love are not in separate compartments: love is rich in intelligence and intelligence is full of love.” [N. 30]

 

Fraternity, economic development, and civil society

This element of the encyclical recalls the interrelation between giving and receiving. God has given us much, but through the influence of original sin—of turning from God and into one’s self—it seems to be the case that it is important only to receive; to give is something rarely if ever considered. As he says,

The conviction that man is self-sufficient and can successfully eliminate the evil present in history by his own action alone has led him to confuse happiness and salvation with immanent forms of material prosperity and social action. Then, the conviction that the economy must be autonomous, that it must be shielded from “influences” of a moral character, has led man to abuse the economic process in a thoroughly destructive way. In the long term, these convictions have led to economic, social and political systems that trample upon personal and social freedom, and are therefore unable to deliver the justice that they promise. [N. 34]

Hope must not be restricted to the present moment; it must be viewed as something that ties one and all to the future and our common human destiny that is easily forgotten and sometimes denied. Here the Pontiff emphasizes a crucial element of Catholic social thought, i.e., solidarity and the common good. Failure to recognize this critical nexus cannot rest upon the limitations of our social, economic, and political institutions; it must rest with the human person and the community of human persons, for it is they who confect these institutions that can and do fail; but they can also succeed if that is the will and hope of man and his brothers and sisters. As Benedict properly asserts, “it is man’s darkened reason that produces these consequences, not the instrument per se. Therefore it is not the instrument that must be called to account, but individuals, their moral conscience and their personal and social responsibility.” [N. 36]

 

The development of people, their rights and duties, and the environment

This fourth element of the encyclical identifies the problems that emerge from the exaggerated autonomy that is characteristic of many aspects of the contemporary world. When the issue of “the development of people” is replaced with the notion of “the development of the isolated and autonomous individual,” the critical nexus of rights and responsibilities is abandoned. In this regard, we may recall the teaching of Jesus that in order to save one’s self, it is necessary to lose one’s self. This does not mean that caring for the self is the problem; it is the problem when self-care takes place without consideration of the other and the world in which the individual person finds himself or herself. As Benedict concludes, “it is important to call for a renewed reflection on how rights presuppose duties, if they are not to become mere license.” [N. 43] A proper understanding to the rights of the individual must exist in the context of the anthropological and ethical framework that necessitates the consideration of not just the one or the group but the every and the all. At this point the Pope addresses population issues, and here he states that human sexuality “cannot be reduced merely to pleasure or entertainment, nor can sex education be reduced to technical instruction aimed solely at protecting the interested parties from possible disease or the ‘risk’ of procreation.” [N. 44] As he further states:

Morally responsible openness to life represents a rich social and economic resource. Populous nations have been able to emerge from poverty thanks not least to the size of their population and the talents of their people. On the other hand, formerly prosperous nations are presently passing through a phase of uncertainty and in some cases decline, precisely because of their falling birth rates; this has become a crucial problem for highly affluent societies. The decline in births, falling at times beneath the so-called “replacement level”, also puts a strain on social welfare systems, increases their cost, eats into savings and hence the financial resources needed for investment, reduces the availability of qualified laborers, and narrows the “brain pool” upon which nations can draw for their needs. [N. 44]

In tying the various points of this section together, the Holy Father emphasizes that much depends on the underlying principles of morality and whether they are subjectively or objectively determined and defined. The truth about the objective and transcendent moral order is crucial to all issues, be they those that concern population growth or the economy or anything else including the environment that surrounds the human family. As the Pontiff insightfully argues, “The way humanity treats the environment influences the way it treats itself, and vice versa.” [N. 50]

 

Cooperation within the human family

Throughout the encyclical, Benedict portrays a variety of dimensions of human poverty. In this segment he identifies an underlying element that tends to affect or produce these various manifestations of poverty: human isolation. In short, he advances the idea that material and spiritual poverties “are born from isolation.” [N. 53] When man is by himself, even though he may be surrounded by plentiful material goods, he is poor; when he is isolated from the care, concern, and love of others, he is indigent; when he cuts himself off from all others including God, he is destitute. As the Pope states, “All of humanity is alienated when too much trust is placed in merely human projects, ideologies and false utopias... The development of peoples depends, above all, on a recognition that the human race is a single family working together in true communion, not simply a group of subjects who happen to live side by side.” [N. 53] What provides vital assistance to the Christian in this context is a realization and acceptance of the vital need for relation: as God is related in the Trinity, so man must be related to his fellow brothers and sisters. The role of unity is crucial to the success of the human person and the human family. Here the Pope reintroduces the significance of the theme of religious liberty, which is discussed in various parts of the encyclical:

The Christian religion and other religions can offer their contribution to development only if God has a place in the public realm, specifically in regard to its cultural, social, economic, and particularly its political dimensions. The Church’s social doctrine came into being in order to claim “citizenship status” for the Christian religion. Denying the right to profess one’s religion in public and the right to bring the truths of faith to bear upon public life has negative consequences for true development. The exclusion of religion from the public square — and, at the other extreme, religious fundamentalism — hinders an encounter between persons and their collaboration for the progress of humanity. Public life is sapped of its motivation and politics takes on a domineering and aggressive character. [N. 56]

The Holy Father goes on to explain that human progress needs to take stock of the fruitful relationship between faith and reason which is kin to charity and truth. Recognition of this relationship brings us closer to realizing God’s plan for all His most beloved creation, the human family and all its members. Moreover, the way to achieve this objective is by putting aside parochial interests and pursuing instead an encompassing cooperation that fosters development for all in matters economic, social, cultural, political, and spiritual. In short, I think Benedict is assisting the faithful and all people of good will to see that the progress of the ego must necessarily be tied to progress for the other as well because each of us reflects not only the image of the self but also the image of the other and God. Another way of putting it is this: as I am, so you are; as you are, so am I.

 

The development of peoples within the framework of technological developments

Finally, the Pope looks at the relation between human development and the extraordinary progress in technology over the last several decades. He suggests that a lesson is to be learned from the tragedy of Prometheus: the reliance on technological development must ultimately lead each and every person to the realization that it is a part of God’s command “to till and keep the land.” [N. 69] Technology is a tool rather than an end. If it is pursued as an objective by itself rather than as a means to something more noble, human existence and the truth upon which it depends may lie forfeit. Advances in technology that do not take account of moral responsibility will inevitably lead the human family away from rather than to authentic human development. Here the Pontiff’s prescient words are particularly revealing:

Development is impossible without upright men and women, without financiers and politicians whose consciences are finely attuned to the requirements of the common good. Both professional competence and moral consistency are necessary. When technology is allowed to take over, the result is confusion between ends and means, such that the sole criterion for action in business is thought to be the maximization of profit, in politics the consolidation of power, and in science the findings of research. [N. 71]

The Pope’s critical eye aids us in seeing the truth that authentic human development is ultimately tied to the entirety of human existence that includes the welfare not simply of the body but also of the soul; not only of the present moment but also of eternity. [N. 76]

 

Conclusion

At this point in the encyclical, the Pope advances a fundamental theme in his presentation: the human person cannot truly advance or develop without God and without his fellow human beings. As he states, “Only if we are aware of our calling, as individuals and as a community, to be part of God’s family as his sons and daughters, will we be able to generate a new vision and muster new energy in the service of a truly integral humanism. The greatest service to development, then, is a Christian humanism that enkindles charity and takes its lead from truth, accepting both as a lasting gift from God.” [N. 78] With Him, we can become more; without Him, we will surely degenerate into less. As Benedict XVI likes to conclude his public exhortations, he ends this encyclical with a prayer: “ ‘Let love be genuine; hate what is evil, hold fast to what is good; love one another with brotherly affection; outdo one another in showing honour’. May the Virgin Mary — proclaimed Mater Ecclesiae by Paul VI and honoured by Christians as Speculum Iustitiae and Regina Pacis — protect us and obtain for us, through her heavenly intercession, the strength, hope and joy necessary to continue to dedicate ourselves with generosity to the task of bringing about the ‘development of the whole man and of all men’.” [N. 79]

 

I encourage members and readers of the Mirror of Justice to read, savor, and discuss this exceptional text issued this morning. I hope that the broad strokes with which I have portrayed Benedict’s Caritas in Veritate will not be viewed as a substitute for reading and pondering his words but, rather, as a catalyst to tolle lege, to borrow from the words of St. Augustine.

 

RJA sj

 

Friday, July 3, 2009

The Feast of St. Thomas, the Apostle

By Robert John Araujo, SJ

 

 

Today is the feast of St. Thomas, the Apostle. I was taken by a passage from St. Paul’s letter to the Ephesians, the first reading. Saint Paul exhorts: “You are no longer strangers and sojourners, but you are fellow citizens with the holy ones and members of the household of God, built upon the foundation of the Apostles and the prophets, with Christ Jesus himself as the capstone. Through him the whole structure is held together and grows into a temple sacred to the Lord.”

I am mindful that our dear friend and colleague at MoJ, Michael Perry, has again drawn our attention to the pages of The New York Times, which has recently presented an article on the multiple visitations by Roman authorities to women’s religious congregations in the United States. Of course, we need to recall that the Holy See recently concluded a corresponding visitation of the seminaries and men’s religious community formation houses in the United States. Although I have much fondness and sincere, profound respect for Michael, I do not share his apparent perspective on The New York Times article to which he has most recently brought our attention.

I have served for many years as a chaplain to houses of women religious in the United States and abroad. From this perspective, I have witnessed that many women religious in the United States are not like those quoted in The New York Times article to which Michael has referred us. From the outset, I am a bit skeptical of The New York Times implication that women religious were the “often-unsung workers who helped build the Roman Catholic Church in this country.” Indeed, they were unsung heroines, as were many lay people, priests and religious brothers. But the insinuation of the Times must be countered by the fact that amongst the native saints of the United States, there are more religious women who have been canonized than men. By my count, there are five American women (and religious) saints [Elizabeth Ann Seton; Rose Duschesne; Katherine Drexel; Frances Cabrini; and, Mother Theodore Guerin] to three men who have been beatified [John Neumann; Isaac Jogues; and, Rene Goupil—arguably, Canada can also claim Jogues and Goupil]. So, I am skeptical of the Times’ claim about unsung heroes and heroines. My point is that many people, men and women, lay and religious and clerics, have been unsung heroes and heroines of the Church in the U.S. So the point the Times wants to make is eclipsed by the facts of the Church’s history in the United States.

So we come to the matter of authority which is important to the Church and most other institutions, both temporal and legal and divine. I respect the Times’ claim to its own authority in the fields where it is competent, but its competence is not without limit for there are occasions when it likes to extend its authority to places where its competence is thin. This article to which Michael refers us is an illustration of this meta-competence.

In any event, I know from my chaplaincy to American women religious that many, not just some American women religious, are grateful that the Church’s Roman authorities are beginning to pay attention to the problems that exist within religious life in the United States. I think the concern concentrates largely on the fact that the idea of religious life has been compromised by some [this includes both male and female members of religious communities] who view themselves beyond the authority of the Church and of their own Constitutions. The Holy See is not, as the Times suggests, trying to push women or any religious back into “convents, wearing habits or at least identifiable religious garb” not “ordering” [the Times’ word] but, rather, reminding them that “their schedules” should focus on “daily prayers and working primarily in Roman Catholic institutions.” This is their charism that explains why these orders were founded and recognized in the first place. To “sojourn” is alien to what they are about and why these orders were established.

And, this is where St. Paul’s wisdom, to which I previously referred, comes into play. He reminds the faithful of the early Church that the time for being a stranger and sojourner is a thing of the past. Yet, the Leadership Conference of Women Religious appears to be focused primarily on an existence beyond the Church that entails sojourning to unspecified destinations. It would seem that some members of this organization’s leadership (of leadership) have forgotten St. Paul’s counsel. For example, in 2007 at the Leadership Conference of Women’s Religious, the keynote speaker, Sister Laurie Brink exhorted,

The dynamic option for Religious Life, which I am calling, Sojourning, is much

more difficult to discuss, since it involves moving beyond the Church, even beyond

Jesus. A sojourning congregation is no longer ecclesiastical. It has grown beyond the

bounds of institutional religion. Its search for the Holy may have begun rooted in Jesus as

the Christ, but deep reflection, study and prayer have opened it up to the spirit of the

Holy in all of creation. Religious titles, institutional limitations, ecclesiastical authorities

no longer fit this congregation, which in most respects is Post-Christian.

In her own words, Sister Brink claims that sojourning is still necessary. All right. But, beyond the Church? Beyond Christ? Beyond Christianity? My friends at MoJ, this is a problem of grand proportion. But the problem does not stop here.

As I read further on in the pages of the Leadership Conference of Women Religious’s website, numerous statements echoing the sentiments of Sister Brink proliferate. But I see no statements reflecting the views of many women religious who continue to labor for Christ, the Church, and God’s people in fidelity to their Congregations and Peter. The Times appears disinterested in the dissenting but not the faithful views.

I guess that is why the Times believes it has the self-conferred emancipation to describe Mother Mary Clare Millea, the head of her congregation and a principal in the Holy See’s examination of women religious in the United States, as “an apple-cheeked American with a black habit and smiling eyes”, and another American woman religious who “has urged [her] fellow nuns not to participate in the study”, as a “professor emerita of New Testament and spirituality at the Jesuit School of Theology at Berkeley, in California.” Perhaps the Times is also more interested in sojourning to a destination that becomes increasingly unclear but also uniformed by reporting this story about the Church and her authority in the fashion that it did.

 

RJA sj

 

Tuesday, June 30, 2009

A life “not worth living”?

By Robert John Araujo, SJ

 

I would like to follow up on Rick’s comment to Rob’s post regarding the recent Cahn-Carbone posting on Prawfsblawg.

 

I have read this posting, and it appears that the Cahn-Carbone argument rests in large part on the attempt to justify the abortion on the grounds that one person can determine that another’s life is not worth living. This justification is premised on the integrity and coherence of the rationale that one person has the right, the ability, the competence, etc. to conclude that another’s life is not or will not be worth living. This is flawed reasoning that is premised on a problematic subjectivity rather than objectivity.

 

I cannot agree with Cahn and Carbone that the parent can “profoundly appreciate” the value of the child’s life but nonetheless proceed to terminate the life of the child for the child’s “own good.” This decision is not based on logic but sophistry.

 

RJA sj

Saturday, June 20, 2009

Thoughts and Action—Catholic Legal Theory

By Robert John Araujo, SJ

 

 

I am grateful to the previous interveners who have presented some important points regarding the role of Catholic legal theory in the daily work and lives of Catholic lawyers. I intend my small contribution today to complement what has already been presented.

I include myself amongst those who have questions, even suspicion, about some legal theories. In reading particular law review essays on “legal theory,” for example, I get the impression that their authors either have given little if any consideration to the application of what they have to offer, or if they have, they could only realize in practice what their theories espouse through a radical revolution in the economic, political, and legal structures and cultural institutions in which we exist today.

However, when it comes to Catholic legal theory, or at least what I think we are attempting to accomplish in this agora, I have a different outlook. While we may not often probe the ethical issues surrounding some aspects of the conduct of lawyers, such as reconciling work done and fees charged, we nevertheless do wrestle with fundamental issues that address the essence of the human person and his nature, the relation of the individual and the societies in which the individual exists, and the proper role that law may have involving these important matters that intersect the lives of everyone.

One individual who exemplifies this synthesis of theory development and practical application is Heinrich Rommen. As I page through his The State in Catholic Thought: A Treatise in Political Philosophy and The Natural Law: A Study in Legal and Social History and Philosophy, I encounter the mind of a great Catholic layman who was, as Russell Hittinger reminds us, not a theoretician so much as a practicing lawyer writing “in response to a political and legal crisis.” The crises of our day are different from those of the time in which Dr. Rommen wrote these remarkable and insightful texts. Nonetheless, I think that the contributors to the Mirror of Justice expend our humble efforts as Catholics to think about and write on what we understand to be the role of law in responding to the predicaments of the present age.

 

RJA sj

 

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