I am sure that many readers of the Mirror of Justice would concur that a lot has been said on these pages concerning the question of conscience—both from Catholic and other perspectives—over the recent past. I have offered my occasional thoughts, and other contributors have as well. Having read the several addresses delivered at Notre Dame this past Sunday, in particular those of President Obama and Judge Noonan, I have concluded that a few more words are in order in light of what was said by these two individuals who spoke from their respective convictions.
At the outset, I think that it is important to keep in mind the distinction as to whether the subject of conscience is being addressed from a generic, secular perspective or one that is attuned to the development of Catholic legal theory. I am of the view that both perspectives have or can have a great deal in common, but since this is not a book or a scholarly law review essay, I haven’t the space here to elaborate fully the similarities and the differences. Having made this point, I would think that most would agree with my general contention. Both President Obama and Judge Noonan commented on conscience and its role in the res publicae, and what they had to say may sharpen rather than blunt what Catholic legal theory, or at least one version of it, has to propose on the topic.
President Obama offered just a few words on the matter. He said,
Let’s honor the conscience of those who disagree with abortion, and draft a sensible conscience clause, and make sure that all of our health care policies are grounded in clear ethics and sound science, as well as respect for the equality of women.
I ponder what he means by a “sensible conscience clause.” He offered no details at Notre Dame, but I hasten to add that his commencement address was not the forum in which to offer the particulars of what he meant. Nevertheless, I would very much like to know what he considers the necessary elements of his views on conscience protection, and I look forward with intense interest on the elaboration that he will probably offer in the future as the question of conscience continues to enter the public debate.
Judge Noonan offered considerably more. In what I hope is a careful and accurate editing of his address, here is what he said about conscience:
For half a century now, a great debate has gone on in this country about a matter touching the inviolability of human life in a mother’s womb, the rights of a woman with respect to her own body, the duties of doctors, the obligations of parents, and the role of government in a decision that is patently personal and significantly social.
The matter of this debate was too serious to be settled by pollsters and pundits; too delicate to be decided by physical force or by banners and slogans, pickets and placards; too basic for settlement to be based on a vote by judges. The matter was settled—so it seemed—thirty-six years ago. The settlement was still-born. Debate intensified. Debate is not now about to close. At its center are the claims of conflicting consciences.
By conscience, as you graduates of 2009 know, we apprehend what God asks of us and what the love of our neighbor requires. More than the voice of your mother, more than an emotional impulse, this mysterious, impalpable, imprescriptible, indestructible, and indispensable guide governs our moral life. Each one is different. You may suggest what my conscience should say, but you cannot tell me what my conscience must say.
That’s the rub when your moral vision is clear and the other fellow’s is cloudy. You become impatient, the more frustrated if the other fellow is a friend—an old friend or a potential friend. Why can’t he or she see it? To satisfy that frustration by shunning or denouncing your unseeing companion will accomplish little beyond expressing your own exasperation.
Help your cause by hurting your friends? No. What does work is prayer, patience, empathy, and the love that encircles the other person, a fellow creature attempting to do what he or she sees as right.
One friend [a reference, I believe, to Mary Ann Glendon] is not here today, whose absence I regret. By a lonely, courageous, and conscientious choice she declined the honor she deserved. I respect her decision. At the same time, I am here to confirm that all consciences are not the same; that we can recognize great goodness in our nation’s president without defending all of his multitudinous decisions; and that we can rejoice on this wholly happy occasion.
We can rejoice that we live in a country where dialogue, however difficult, is doable; where the resolution of our differences is done in peaceful ways; where our president is a man of conscience. We can rejoice with you, members of the Class of ‘09, as your voices join the dialogue and declare your own consciences on the urgent moral matters that will be settled only when they are settled right.
“Great is truth. It will prevail.” This scriptural text is inscribed on the Laetare Medal. Believing the Bible, sustained by this message taken from it, we can work together. Yes! We can work together, serenely secure in that trust that the truth will out.
I apologize for the lengthy quotation, but I think it essential to present what may have been Judge Noonan’s suggestion to President Obama regarding the contents of a “sensible conscience clause.” In my estimation, Judge Noonan was correct in saying that one person’s conscience cannot dictate what another’s should be. Thomas More made a similar observation almost five hundred years ago. In this regard, we can recall Louis Brandeis’s remark about the right to be left alone. The state has no business in interfering with a person’s conscience be it well-formed as I have discussed in previous postings or otherwise. This is not to say that a person who declares himself or herself Catholic can claim that one’s personal conscience is well-formed because of this right to be left alone. As the Judge himself stated, not all consciences are the same. In relation this point, Judge Noonan suggested that a person’s conscience should be in tune with something extending beyond the individual’s private thoughts when he stated that “we apprehend what God asks of us and what the love of our neighbor requires.” He concluded his address with a remark about the greatness of truth which he stated will ultimately prevail. But, what is the source of this truth, and what is its relation to conscience and what I have been attempting to argue regarding its proper formation?
Indeed, a part of conscience is a very private matter, for that is where each of us encounters the essential norms that are not of our own derivation but which we must nonetheless obey if we consider ourselves disciples of Jesus Christ and members of his body, the Church. Judge Noonan was on target when he pointed out that “conscience” is conscious of what God asks and what is due the neighbor. It is here, in conscience, where we who believe in God encounter God in the depth of our individual being. Often times the Church makes this point in her teachings on the natural moral law—the place where we encounter the law of God that is inscribed on our hearts. It is in this inner sanctuary where we find God’s law—God’s commandments engaging our individual being, permeating our essence, encountering us in the fabric of human existence. It is here where we engage and respond to the constant challenge of doing good and avoiding evil.
Conscience, for the Catholic, is not merely the act and response of how one feels about something that has a moral bearing. It is an exercise of reason—right reason where the individual as a disciple of Christ recognizes what is morally good and what is not and then chooses to do what is good and strives to avoid what is not. It is vital to understand that these elections are not purely autonomous but involve the engagement of the individual person with God speaking to the believer. I think it was Newman who said that conscience is God’s “messenger” or “herald.” Judge Noonan mentioned prayer and patience, and it is by prayer that we engage more deeply the message and the Messenger.
Conscience involves the exercise of personal dignity, but it does not stop there. It cannot, for inevitably it brings us in relation to God, to the world, and to our neighbor. Indeed, conscience must be sensible—as President Obama implied—but it cannot be what is convenient, what satisfies a group consensus, or what is necessary to achieve a political compromise. No, the “sensible” associated with conscience is much more. Inevitably, the “sense” associated with it must be inclined to the objective truth that I have previously addressed, and this Truth is God if we are discussing the conscience of the Christian. Otherwise, the Christian’s purported exercise of “conscience” is prone to be an application of subjectivity distant from God and what He asks.
As I mentioned in stating my agreement with Judge Noonan on this point, no person can dictate to another what his or her conscience should hold. However, what a person holds in conscience and how that conscience is formed do not guarantee that his or her conscience is well-formed. For the Catholic, one’s conscience is well-formed by the voice of God speaking to that person. And I believe that the way of testing this is to see whether the Catholic’s conscience is in tune with what God’s Church teaches.
It may be that I and some other members of the Mirror of Justice disagree on this. But for the Catholic’s conscience to be well-formed and for the moral judgments which he or she makes to be in accord with conscience’s proper formation, it is not self-revelation or self-opinion that is determinative, it is the encounter with the wisdom that God. God’s wisdom is available to us in prayer, in human interaction, and through the exercise of right reason. Again, I believe that Judge Noonan and I agree that no person can tell another what he or she must do in the exercise of conscience. But this means that that person’s exercise of the well-formed conscience is not based solely on personal autonomy. Otherwise the person’s conscience may be in error. This does mean that another person or the state can interfere with his or her “inner voice,” but by the same token it does not mean that this person’s inner voice is correct and without error. The person may have a civil right to believe the error, but the error itself does not. Coming back to the person who, in the exercise of his or her civil right, is in error does not mean that this individual’s view and the subsequent exercise of conscience are consistent with the wisdom of God. It is not the civil authority that makes this determination, but God.
Conscience is a sanctuary from other persons and the state. But it is not a sanctuary from God. It is the ground upon which we, as individuals, meet Him and decide how to respond to what God asks. Conscience may well be the greatest defense a person can have against what the civil authority unjustly demands, but it is not an excuse to exclude one’s self from the mandate of God and the wisdom He offers to us all.
RJA sj
Friday, May 8, 2009
I thank Steve for his question and his patience in waiting for my response.
It is clearly possible for the person who considers himself or herself Catholic to form conscience subjectively. But, as I have said before, this is not synonymous with the well-formed conscience that I have spoken of on several occasions here at the Mirror of Justice over the past several years. It may well be that Steve and I disagree on this point (I believe we do), but I understand that the Catholic’s well-formed conscience will reflect the Church’s teachings. I think it is relevant to point out here that this is not something that is forced upon the Catholic, for that would itself be a problem. Nonetheless, the Catholic who exercises the well-formed conscience understands the justifications given for the Church’s teachings and accepts them into his or her views. This is done consistent with the principle: the Church proposes, not imposes. The person is then free to be Catholic or not. If the personal selection is one to be Catholic, then the person’s fidelity would necessitate adopting and following Church teachings. It may be that Steve and I have disagreement on this point. If so, then we disagree.
Steve raises an important point about the Smith (the peyote) case. I am sympathetic to what he says considering the fact that the outcome in the animal-sacrifice case from Florida (Church of Lukumi Babalu Aye) was quite different. But it is relevant here to take stock of the fact that both of those cases principally focused on religious freedom based on the First Amendment. They did not pose the question of conscientious objection (although some references to conscience were made in dicta). Recalling what I said in my second response to Rob posted yesterday afternoon, the draft cases seem to provide an important precedent to the kind of circumstance Steve raises.
I don’t think one could successfully argue conscientious objection to homicide laws if the religious perspective condones or mandates human sacrifice. The exercise of this kind of conscience would be most subjective and would not reflect the teachings of the Church. When it comes to the use of peyote, the response must be more nuanced. The Church does have teachings about substance abuse, but I wonder, given the context of Smith, if the “sacramental use of peyote” is sufficiently similar to the exemptions from the prohibition laws regarding the sacramental use of wine. If so, Steve’s hypothetical arguably falls within the category of the well-formed conscience.
RJA sj
Thursday, May 7, 2009
Thanks to Rob and Steve for their thoughtful views. I will have to defer addressing Steve's posting until tomorrow. But I shall attempt to answer Rob's last posting here. I have tried to present arguments that are legal and meta-legal as to why the well-formed conscience, as opposed to the poorly formed conscience, should be protected. With his clarification, Rob is not asking about how the Church should treat the poorly formed conscience. Rather he is asking whether the conformity of one's conscience to Church teaching should be relevant to its treatment under the civil law. As we have seen in the evolution of the draft cases, the highest court of our land has given favorable treatment to the religious arguments for conscientious objection against combat service as well as secular ones. So, we have judicial precedent taking stock of and respecting the religious argument regarding the taking of life in combat. I think the legal argument to protect the person who objects on religious grounds to the taking of early human life by abortion logically follows. If it does not, then there is a problem not in my argument but with the dispensation of the law.
RJA sj
Thank you, Rob, for your questions and comments on my posting regarding conscience and its protection that I posted yesterday.
As I mentioned then, the Mirror of Justice is a web log dedicated to the development of Catholic legal theory, and because of that, I believe it is essential that we consider issues from the Catholic perspective. This does not preclude our discussion of other views on the matters under discussion and debate. Moreover, it does not mean that the Catholic perspective cannot share views with the non-Catholic viewpoint on many issues; however, it is clear that there will be disagreements on some occasions. With regard to issues dealing with conscience and its protection, I believe that you and I do arrive on the same side, as you said, on many components of the conscience debate. We have discussed these agreements in the past, both here at MOJ and in person.
But, there have been a few occasions when we have disagreed. I cannot predict if disagreements will occur again, but I cannot rule out the possibility. Moreover, our disagreements have not always been on issues bearing the same or uniform weight. The fact that we may disagree on some issues does not mean that one of our consciences is not well-formed. In some areas, I think there can be disagreement within and outside the Catholic community on particular issues because the Church’s teachings have not yet been precisely defined, e.g., capital punishment. Having said this, I think that it is clear that the Church does teach that there is a very strong presumption against the legitimacy of capital punishment in most instances. However, on issues such as abortion, torture, marriage, and embryonic stem cell research that will take the life of the embryo, the Church’s teachings are much more precise and clear.
I also think we both agree that there are many Catholics and non-Catholics who arrive at the same position on abortion, torture, marriage, and embryonic stem cell research. Here, I would like to recall a point I made yesterday about this intersection of views: “The Catholic perspective may, Deo gratias, intersect with those held by persons of other religious persuasions or persons with no religious views, but there is no guarantee that this will be the case.” The Catholic it would seem is asked by the Church to develop his or her conscience in light of the Church’s teachings so that the person’s conscience is consistent with the Church’s teachings on the matter that is of concern to conscience. Of course, there are persons, including some Catholics, who take a different approach and arrive at a different position than mine. It appears that the Mirror of Justice has been one venue in which these disagreements have presented themselves.
When the non-Catholic is under consideration, I realize—as I think you do—that he or she is not obliged to study Catholic teachings when forming his or her conscience. However, he or she may take some other approach that still leads to the same conclusions that the Catholic should develop and hold. In both cases, these persons—Catholic and non-Catholic—should have arrived at a well-formed conscience that merits protection. In the context of the non-Catholic, the Church’s teachings are not imposed on him or her. In the case of the Catholic, the faithful person who is Catholic and chooses to remain so elects to use the Church’s teachings in the formation of his or her conscience. This is the response I offer to your first issue.
Regarding the second issue you raise, you state that a person (I am assuming you mean a Catholic here) “may be culpable for a poorly formed conscience, but not for following that poorly formed conscience.” In either case, the person has a poorly formed conscience, and by what you said, the person remains culpable. Are you in fact asking what, if anything, should happen to the Catholic who has a poorly formed conscience whether or not he or she follows it?
Thanks, Rob. If the need be, I look forward to continuing this discussion with you.
RJA sj
Wednesday, May 6, 2009
I take this opportunity at the outset of this post to thank Michael Perry for drawing our attention to the two interesting, important, and thought-provoking Commonweal posts of Prof. Cathy Kaveny on conscience protection. Clearly, this issue of conscience protection will be with us for some time. Evidence of this is found in the well-attended conference at Fordham in which Rob Vischer participated and reported elsewhere on these pages of the Mirror of Justice. Today, the emphasis on conscience protection appears to concentrate on those in the professions dealing with health care, e.g., doctors, nurses, medical technicians, and pharmacists. But we need to keep in mind that anyone from the renter of an apartment to anyone who enters the public realm in some fashion that deals with the controversies of the day—abortion, same-sex marriage, military service, scientific research, etc.—may find it necessary to claim conscientious objector status and protection to whatever the state and those who wield its power require with regard to these and other controversies that present moral issues.
As theologian-lawyer/lawyer-theologian, Cathy has presented us with some important issues to consider. A fundamental issue that her thoughtful postings present deals not so much with the idea of conscience protection as with the breadth of conscience protection. I would like to offer the following thoughts on this issue and those which may be related to it.
As the Mirror of Justice is a web log dedicated to the development of Catholic legal theory, I submit that it is essential for us to consider the question of conscience from how the Church considers and defines it. Most people, certainly in the western legal cultures, would agree that there is a need to protect conscience; however, it is essential to understand what conscience is and, just as importantly, what it is not in so far as what must be protected when the claim to conscientious objector status is claimed.
For many, conscience is that voice within us that directs our thoughts, words, and deeds. It helps most persons to distinguish between what is to be done and what is to be avoided. For many, but not all, conscience is formed by a moral evaluation of what is appropriate and what is inappropriate in thinking, speaking, and acting. But if conscience is only subjectively determined, the moral considerations that may accompany its exercise are most likely subjectively determined as well. Private morality is not, in all cases, a bad thing. But to those persons sympathetic to the perspective of Catholic thinking and the development of legal theory that accompanies it, the moral evaluation that molds conscience cannot be restricted to this “inner voice” and nothing more. For the Catholic, conscience must be rooted in that which is beyond and transcends the restrictions of the subjectivism that is characteristic of the “inner voice” that is tied to nothing beyond the ego.
In the Catholic context, conscience is that part of human nature that takes the individual beyond the subjectively determined and relates the person and his or her thoughts, words, and deeds to the transcendent and objective moral order. There are some, perhaps many, who would be skeptical of this claim. But the Catholic needs to be remembered that he or she is in communion with God; is a disciple of Christ through baptism; and, is united with the Body of Christ, His Church. Therefore, he or she should not join the ranks of the skeptics but, rather, acknowledge that the claim I present, which is not to say that it is only my claim, takes us closer to the truth of what conscience should dictate and how it should be protected. For this truth leads us to Truth—God—who is the source of the transcendent and objective moral order that is at the base of the well-formed conscience.
So, when we come to some of the fascinating scenarios posed by Cathy about how any person should go about making individual ethical choices, the question of how far should conscience be protected must be confronted. The approach to responding to this in the realm of Catholic legal theory, I suggest, is non-partisan in party politics but is partisan when viewed as being Catholic or not. For me and the position that I must present, it is irrelevant if the subject under consideration deals with abortion rather than contraception, or contraception rather than abortion, etc., etc. If the person who claims conscientious objector status to either (or both) of these “services” does so by relying on moral principles that are not simply from the “inner voice” but from the objective standard that relies on the rigorous process of right reason, should not his or her claim be protected? I think so, if one relies on the rationale proposed by the Church concerning these and related matters.
I share Cathy’s view that it is mistaken to treat the controversies with which conscientious objector status is immersed as simply partisan skirmishes “accompanying a shift in political power.” As she further indicates, it is essential to grapple with the underlying moral and political issues, but it is also vital to keep in mind that the moral has to be distinguished from the political. Otherwise, the moral may well be influenced by the political. In the present age and probably beyond, it is or will be much more difficult, and sometimes impossible, for the moral to influence the political. If we think too much like lawyers and not enough like Catholics who are lawyers, we become susceptible to being swayed by the political currents that take our country, our civilization, our world adrift.
Thus, conscience well-formed and why it must be protected is, for the Catholic, always crucial. The Catholic perspective may, Deo gratias, intersect with those held by persons of other religious persuasions or persons with no religious views, but there is no guarantee that this will be the case.
I concede that there are many takes on conscience. Nonetheless, conscience consistent with the manner of which I speak is not merely the position of a person who does not like what is going on and is unwilling to accept it on the basis of what that person believes to be, in good faith, immoral or evil or politically unacceptable. Conscience is much more.
The fact that many views of “conscience” may exist in our culture and in our country has been intensified and reinforced by Justice Kennedy’s regrettable dicta in Casey contained in the “mystery of life” passage as I have argued here on numerous occasions. The law may not be designed to implement morality into all its content. But, by the same token, the law must never become an instrument to deny the legitimacy of the moral view, as defined by the objective standards explained by the Church, held by those who disagree with the law in a given instance. Disagreement by itself is not the act of a brigand. It may be argued that the society and the rights of others are harmed if this conscience were protected. But is this really true?
Really?
My dear friends of MOJ, I deny that this is the case. There will continue to be those who champion abortion, same-sex marriage, embryonic stem cell procedures, and whatever other controversial idea and its practice that may come along one day. It is evident that for every doctor, nurse, medical technician, pharmacist, clergy member, justice of the peace, lab technician, photographer, land lord, etc., etc., etc. who objects to engaging in the controversial decisions of the day to which he or she objects on the grounds of conscience, well-formed, there will be an opposing member of the same category who will comply, perhaps even with enthusiasm, with whatever is requested and permitted by the law. The undue burden is not on the woman who wants an abortion and is refused it by a particular doctor, clinic, or hospital. The burden that is undue is, rather, the estate of the person who chooses not to participate in this and other controversial practices that the law permits or even encourages but is, by objective standards, morally objectionable.
Once the truth of this is realized by us, by our society, and by our society’s legal institutions, we may no longer find it necessary to argue about conscience protection and how far it should apply. The decision not to do something objectionable because the well-formed conscience says that it is so may be personal. But when all is said and done, this decision does not prohibit another who disagrees with it from going to those who will comply with their requests or demands. To me, protecting the right of conscience well-formed is a win-win situation: those who choose to engage in the controversial and what others deem morally objectionable are entitled to do so because the law says they may; but, those who choose not to participate in the controversial because of what their well-formed conscience instructs can go on with the peace of mind that their well-formed conscience shall not be compromised.
We live in a world and political culture which say that error has rights—even though only people can have rights. So, people with erroneous views have rights to proclaim and exercise them. But this is not to suggest or require that those individuals who choose not to participate in these errors have no rights either.
RJA sj
Saturday, April 25, 2009
I should like to begin by thanking my MOJ friends Rick Garnett and Tom Berg for their great work, and that of their colleagues, for preparing their responses to the Connecticut legislative initiative to codify the decision in the Kerrigan case. Both Kerrigan and its codification, in my estimation, are mistakes. No surprise there regarding my viewpoint, which I believe is reflective of the Church’s teachings on these issues.
Having said this, what is to be done? To borrow an expression… As Tom suggested a while back, there is an urgent need to enact and implement appropriate and effective conscience protection. In the past, I, too, have argued the need for appropriate conscience protection to serve as a counterpoint to the totalitarian appetites of the present age. So, I am most grateful to Rick and Tom for their skillful labor to maximize conscientious objector protection.
I would now like to offer a few thoughts about what the current legislative protections appear to imply and what they may not. First of all, it is satisfying that religious organizations are the logical beneficiaries of the conscience protection. But, we need to take stock of the inevitable fact that organizations (be they churches, fraternal organizations, other associations, etc.) while being juridical persons are, in fact, an association of natural persons, i.e., individual human beings who are members. It strikes me that if the conscience protection afforded the organization may not apply to the individual member, what protection, in fact does the organization really enjoy if its members are exposed to liabilities under the law? It is a protection that becomes easily forfeited if the protection clause is without substance and cannot be relied upon by the organization’s members.
But let us assume that the conscientious objector protections also extend to the individual members of the organization. What claim to conscience protection can be made by the person who is not a member of an organization that is the beneficiary of the conscientious objector protection clause? We need to remember what Christopher Dawson noted in the 1930s when he predicted that the insistence for uniformity imposed by the totalitarian authority which demands universal adherence to some problematic idea can push the Christian or other believer out of physical existence. Our friend and MOJ colleague Michael Scaperlanda has offered parallel thoughts in his 2002 essay in the Texas Review of Law and Politics concerning the resistance or opposition from the state that families who wish to rely on voucher programs to ensure a proper education to their children encounter. In short, recognition of same-sex marriage is not enough unless it is embraced by one and all. And this outcome is not representative of democracy but of the totalitarian state. The religious liberty protection offered may, in fact, be no protection at all if it cannot be relied upon by those to whom it should logically apply. If the same-sex marriage advocate persists in seeking nondiscrimination for his or her clientele, why should the advocate for religious liberty not be able to do the same?
In considering the harassment question, I agree that harassment of persons seeking same-sex marriage is morally objectionable. But I hasten to add that so is harassment of those who on religious or any other ground wish to exercise their proper liberty to protest or object to same-sex marriage within the mechanisms of our democratic and juridical institutions. It is tragic to see those citizens who have assembled to support Proposition 8 (California) be harassed by those citizens who opposed the initiative. It is tragic to see Miss California publicly harassed for giving a candid and respectful response to the issue of same-sex marriage during the Miss USA pageant.
RJA sj
Tuesday, April 21, 2009
I share Rob’s interest in the work of Jeremy Waldron especially on his recent essay in Volume II of the Journal of law, Philosophy and Culture regarding the putative Christian silence and torture. I am anxious to find out what evidence Professor Waldron uses to support his conclusions that are reported in the excerpt. I don’t think it is Catholic, however.
My reasons for stating this is that I have been at too many international debates serving as a representative of the Holy See in which torture has been the subject of the discussion. My guiding principles in these discussions have been this publicized synthesis of Catholic teaching that long precedes the War in Iraq and its aftermath:
The activity of offices charged with establishing criminal responsibility, which is always personal in character, must strive to be a meticulous search for truth and must be conducted in full respect for the dignity and rights of the human person; this means guaranteeing the rights of the guilty as well as those of the innocent. The juridical principle by which punishment cannot be inflicted if a crime has not first been proven must be borne in mind. In carrying out investigations, the regulation against the use of torture, even in the case of serious crimes, must be strictly observed: “Christ’s disciple refuses every recourse to such methods, which nothing could justify and in which the dignity of man is as much debased in his torturer as in the torturer’s victim”. International juridical instruments concerning human rights correctly indicate a prohibition against torture as a principle which cannot be contravened under any circumstances. Likewise ruled out is “the use of detention for the sole purpose of trying to obtain significant information for the trial”. Moreover, it must be ensured that “trials are conducted swiftly: their excessive length is becoming intolerable for citizens and results in a real injustice”. Officials of the court are especially called to exercise due discretion in their investigations so as not to violate the rights of the accused to confidentiality and in order not to undermine the principle of the presumption of innocence. Since even judges can make mistakes, it is proper that the law provide for suitable compensation for victims of judicial errors.
I sometimes wonder if folks consider that the Catholic Church’s position on many important, even vital issues does not exists because it is not reported in the popular media. If the pope mentions the words “condoms” or “abortion,” you can expect the popular media to pounce on what is taught, and pounce they do. But if the Church addresses “torture,” “Darfur,” the “crisis in education,” or “hunger,” (just to cite a few important, pressing issues of the day) does the popular media report these teachings, exhortations, and positions? My answer is this: probably not. Would the popular media be interested in the fact that the Holy See is one of the earliest parties to the Geneva Conventions for which it does much good in regularly proclaiming their importance and advocating for their authentic implementation? (The Holy See signed the Conventions right after the conclusion of their negotiations in 1949, and it ratified them in February of 1951 [its ratification being the first deposited]). Probably not. So, I am not surprised that Professor Waldron has reached the conclusion he has if he had the Catholic Church in mind when he wrote this article. When it comes to any major issue and the Church’s view on them, we’d all be better off if we could spend more time in researching primary sources and less on secondary. The primary sources are what are important even though the popular media may not agree with this position.
RJA sj
Monday, April 13, 2009
As Mirror of Justice contributors and readers may recall, I indicated prior to the Easter Triduum that I would be spending time during the quiet of Holy Saturday thinking about recent posts that reveal the division amongst our approaches to issues that most of us believe we contribute to from a Catholic perspective.
It is clear to me that most of our MOJ contributors do not shy away from addressing the controversial issues of the day that frequently divide our country and our world. Some may think that because we have dedicated our efforts in this project of developing perspectives on Catholic Legal Theory that we share common beliefs that are essential first principles pertaining to Catholic teaching. In fact, we do not always express unanimity but frequently disclose the same ruptures that exist within our society on the hot button issues such as abortion, marriage, etc. Surely by addressing the moral aspects of these and other sensitive issues we seem to participate in the national and international debate that separates rather than unites.
In part, our division appears to be attributable to whether we accept the truth or not about particular claims advanced by the Church—or as some of our friends here at MOJ sometimes argue, the institutional Church. For me, there is one Church that is Catholic and apostolic. It has local elements or churches, but there is one Church of which these local ones are constitutive elements. The matter of truth is on my mind as I reread the Passion according to St. John proclaimed on Good Friday and focus on the encounter between Jesus and Pilate and the skepticism of the latter who asks, “What is truth?” For me, the truth is what Jesus told Pilate and others and what has been continued in the Church for almost two thousand years. I believe that there are truths about us, our human nature, our human essence. As you might gather, I am not a fan of William of Ockham. However, I have come to see that for others here at MOJ, different views of the relation between essence and existence are probably held and are certainly expounded. This is an element of the evidence that, even though we contribute in a friendly and often spirited way, we do not proceed with the same vocabulary and grammar in mind, i.e., from the same first principles.
Recently, I was taken to task for the grammar and vocabulary I used in addressing elements of the SSM debate and the recent Varnum decision issued by the Iowa Supreme Court. I have gone back and read several times the critiques offered about my views and the positions I expressed. I regret that what I said triggered the responses that were forthcoming, but I take this opportunity to reiterate what I presented earlier about that decision. I respectfully disagree with Susan in particular. Apparently, we read the decision differently and reach contrary conclusions about its discussion regarding religion. When I reread the Varnum opinion, I continue to be troubled by the justices’ suggestion that a religious perspective on the marriage question is unconstitutional. I don’t think they see the possibility that the religious perspective can present moral views that are not only theological (and therefore may be problematic in a constitutional sense) but also based on right reason (and therefore not problematic in a constitutional sense). I think it does not occur to the judge using secular reasoning to see the incoherence of prohibiting moral reasoning (that may resonate with a religious community) with which he or she disagrees but of accepting moral reasoning (that may also resonate with another religious community) with which he or she does agree. This very thing happened in Webster (Stevens, J.) as I mentioned earlier, and it happened again in Varnum. In both cases, the judges disagreeing with certain religious views said that the state could not allow religious views to intersect official decision-making. Ironically, they did not see the fault in their own references to other “religious” views that coincided with their conclusions. It is difficult to accept the strict separation argument Justice Stevens and Justice Cady proffer when it is only some religious views (those that don’t fit with their respective conclusions) that are to be excluded while acknowledging that other religious views (those that coincide with their respective conclusions and to which they each referred) coincide with their own. If it is a religious view, then it should not be reflected in their decision, period. To put it bluntly, this is not impartial decision-making that is essential to the judicial process, it is sophistry.
In short, why do I take the positions that I do? I labor to rely on a grammar and vocabulary that has been in the Church for a long time. I gather that some of my other friends and MOJ contributors rely on other vocabularies and grammar more consistent with John Rawls than with John the Evangelist. Nonetheless, I was surprised by the particular rebuke concerning the will-versus-the-intellect distinction I that I presented last week when I discussed Varnum. I assumed that the vocabulary and grammar upon which I relied in presenting my thoughts on Varnum was shared by most, if not all MOJ contributors. However, I have come to realize that I was mistaken in this assumption. So, what to do to make it clear to my friends and colleagues here at MOJ with whom I occasionally disagree? I propose to be more clear about the sources of my vocabulary and grammar in the hope that it is or can be the grammar with which my MOJ fellow contributors also share. Here today, I offer some thoughts from Heinrich Rommen who has had considerable influence on my thinking when it comes to many issues that bring together legal reasoning and Catholic teachings—thoughts which are reflective of the grammar and vocabulary that I consider essential to talking about Catholic Legal Theory:
It has already been shown how in moral philosophy this thesis of the will as the nobler faculty led, and had to lead, through Duns Scotus to Ockham, i.e., to the most one-sided moral positivism, for the doctrine of the will as the nobler faculty is itself the root of nominalism. But nominalism, directed only to the individual, particular thisness, to the existence which is related to the will, arrives in its extreme forms at the denial of the clear and distinct knowability of the essences of things, of the essence which is related to the intellect. The universals are but vocal utterances. Reality, since in its quiddity it is not unmistakably knowable for us, is likewise not the measure of our knowledge. The order of being cannot of itself become a norm of the will; the absolute, omnipotent will of the Supreme Being can alone become that.The entire doctrine of the eternal law and natural moral law is undermined by such a view. Just as the theory of will in municipal and international law cannot admit a law beyond the positive one (or, more precisely stated, beyond the factual will as a persisting act), so Ockham, for instance, could not admit a morality that does not have its first, proximate, and sole norm in omnipotent will, in the absolute power of God. If, then, the idea of God and therewith the supreme personal will are lost to sight or rejected, nothing is left as the source of norms but the concrete will of the earthly lawmaker. Or, as in the case of Spinoza, the deep impulses of nature (here taken as contrasted with mind) are regarded as the natural norm. The biological as well as materialistic ethical systems and theories of law have here their roots.From this it follows that the doctrine of the priority of the intellect over the will in God as well as in man is a prerequisite of the possibility of a natural moral law and hence of the natural law in the narrower sense.
I sincerely look forward to our continuing contributions and discussions about these matters.
A blessed Eastertide to one and all!
RJA sj
