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, August 4, 2006

"Treating Both as Neuters"?

By Thomas Berg

I'm not saying anything here about the "imaging Christ" rationale for the male-only priesthood.  But it seems to me that there is a fallacy in C.S. Lewis's argument (quoted by Bill Castle in Rob's post) that

[t]o say that men and women are equally eligible for a certain profession is to say that for the purposes of that profession their sex is irrelevant. We are, within that context, treating both as neuters.

But surely this doesn't follow.  In supporting the equal eligibility of men and women for any profession, one could be saying (in whole or in part) that women and men as different sexes would each bring distinctive contributions, perspectives, and natural or experience-based qualities.  Far from "neutering" persons of the two sexes, this argument affirms the differences in qualities but adds that both sets of qualities are valuable for the position in question.  It's my sense that many of those who want to see women priests think that women would offer distinctive qualities that would bring important aspects of the priesthood to the fore that tend not to be brought out with an all-male cohort.  To put it in terms of recent legal theory, Lewis's criticism addresses only "sameness feminism," not "difference feminism."

Again, it can still be that some particular difference between men and women -- e.g. that Christ was male -- is dispositive for the question; that's a separate dispute.  I just don't think that Lewis's "neutering" argument works.

Tom

Thursday, August 3, 2006

America's "Fundamental Goodness"?

By Thomas Berg

Here's the passage from Senator Brownback's speech on American exceptionalism and our "fundamental goodness":

[I]deas and ideals live on, picked up by the next generation, the next Reagan, the next King, and while some battles have already been won, others remain to be fought. When Reagan traveled the country for General Electric, as I noted, in the '50s, he would often speak about this characteristic of uniqueness to American, American exceptionalism. As I noted, this great nation made up of people from all over the world had a special place and a special destiny for mankind. . . .

But what is the basis for this American calling, this American exceptionalism? I believe it is in our fundamental goodness, and that if we lose our goodness we will most surely lose our greatness. Certainly we have our problems and often get things wrong, at least for a while, but then some movement based on goodness and fixing what's wrong will start up and not stop until the problem is eliminated.

There are many good exhortations in the speech, and as I said it's great to see Christian conservative leaders out in front on Darfur, Congo, prisoners, etc.  But it's hard to read a reference to America's "fundamental goodness" without thinking that the doctrine of original sin is being overlooked here, with potentially bad consequences.  (Without going into detail here, I'd assert that most of the big mistakes the nation has made in Iraq and the anti-terrorism campaign have stemmed from a failure to take into account original sin.)  It's hard to inject some sober recognition of the limits and dangers that inhere even in good causes without undermining the vision of moral possibilities that inspires people to act for such a good cause in the face of opposition.  But the two have to be there.

Tom

Forgiveness, Repentance, and Faith-Based Prison Programs

By Thomas Berg

In another response to the question about criminal punishment, forgiveness, and the state, MOJ friend Matt Donovan sends this Weekly Standard story about Sam Brownback, evangelical-turned-Catholic and potential 2008 presidential candidate, periodically giving a Bible study at a state prison (and spending a night in a cell) as part of the Inner Change Freedom Initiative.

Leaving Building 4, Brownback goes to the spacious (9,167 square feet) Spiritual Life Center, recently built to accommodate a growing inmate demand for religious programs. On its website, the Kansas Department of Corrections describes the center as providing "opportunities for inmates from diverse faiths to develop and restore relationships with God, their families, and crime victims." In a conference room, Brownback engages a dozen inmates in an hour-long conversation about their post-prison hopes. He tells one who calls him "Mr. Brownback" to change that to "Sam." And "Sam" it is. To another prisoner he says, "Your experience sounds like my own. You don't recognize temptation when you should." A prayer by Brownback closes the meeting, and then the senator retraces his steps to Building 4 and then to G-pod, cell 42, where, locked down, he spends the night.

You might not expect someone weighing a presidential run in 2008 to spend a dozen hours

in a state prison; it's not exactly the best place to go in search of campaign dollars or volunteers. But once you grasp Sam Brownback's political vision, his visit to the Ellsworth Correctional Facility seems less odd.

Earlier this year, Brownback gave a lecture at Kansas State, his alma mater. He chose as his topic "American exceptionalism"--the idea, as he explained it, that our country is a "special place" and that it has a "special destiny for mankind." Brownback said that the source of American exceptionalism lies in "our fundamental goodness," and that while we have had our problems and "often get things wrong," we eventually find our way, because "some movement based on goodness and fixing what's wrong" starts up and doesn't stop until the problem is fixed. Like the abolitionist movement, which settled in Kansas "with a heart to end slavery." And the civil rights movement, which sought to end segregation. Those movements, said Brownback, fought for "the inherent dignity" of every person, for "righteousness and justice." In our time, he continued, we must carry on this fight by reaching out to people who need help--"the poor and dispossessed," including prisoners and their families. We need to defend the dignity of people "no matter where they are, no matter what they look like, no matter what their status." And not just here at home. Brownback pointed to the sub-Saharan region of Africa, where he said 60 percent of the children have malaria; to Darfur, where the genocide continues; and to the Congo, where "an estimated 1,000 preventable deaths" occur every day.

I know that I'd disagree with a number of Brownback's political positions; and yes there are real constitutional questions if the Inner Change Freedom Initiative is the only or dominant life-transformation program in the prison.  But shouldn't everyone across the political spectrum recognize that it's unusual and valuable for a politician to care enough about prisoners to spend any time with them and to call attention to these so-often-forgotten people?  You sometimes hear critics refer to the most intensely religious Republicans -- Brownback, Rick Santorum -- as the "nut case" Republicans, in contrast to the moderates.  They're right: it is nutty to spend your time visiting prisoners who can't vote, or (in Santorum's case) to push against the business-lobby types that dominate the executive-branch roster of his party for more money for anti-poverty programs (that include faith-based or other personal-transformation emphases). 

Now the questions.  I'd like to put John McCullough, who asked about this topic originally and does good work with expunging criminal records and helping ex-prisoners, in conversation with Senator Brownback and see what the two say to each other.  I wonder what Brownback's position is on expungments of criminal records -- or on the laws that disenfranchise felons permanently or long after their sentence has ended.  My sense is that Brownback's party overall has had a pretty "non-compassionate" record of supporting the strictest and long-lasting disenfranchisement laws.  I also wonder what other kinds of social supports would be very helpful for ex-offenders -- job retraining etc. -- but face opposition from those on Brownback's side of the aisle who tend to be negative on social spending.  In his references to sub-Saharan Africa, Brownback implicitly recognizes the importance of material aid as well as personal transformation; does that show up in his budget priorities [addition here] in general, not just regarding Africa?

On the other hand, I imagine that the challenge Brownback might raise is to ask how we have confidence that repentance and personal transformation really have occurred in a person during prison.  Aren't efforts like the Inner Change Freedom Initiative -- assuming there are some secular counterparts, and that we avoid Establishment Clause concerns -- a precondition to wiping the legal slate clean?  In writing this, I see a number of rehabilitation-oriented programs listed on the expungement clinic website: looks great.  Isn't Brownback right that a faith-based program like Innter Change Freedom Initiative is an important contribution to this cause?  Shouldn't we try to keep these programs, structuring them in a way to minimize the concerns about government-imposed religion, rather than toss them out altogether?

Separate from all this, there's the stuff from Senator Brownback about "American exceptionalism" and our "fundamental goodness."  That deserves a separate post, since this one is already so long.

Tom

More on Forgiveness by the State

By Thomas Berg

Thanks to Larry Solum for his response on whether the secular state can forgive.  Here's another response concerning another example of forgiveness in law, from Sam Morison of the Office of the Pardon Attorney at the US Department of Justice.  He shares this abstract of his article "The Politics of Grace: On the Moral Justification of Executive Clemency" (on SSRN here):

The retributive critics of the pardon power typically maintain that the institution of executive clemency is little more than an archaic relic of our distant monarchical past, which functions at the mere political whim of the chief executive, and is thus without any substantial rational justification. For these reasons, they argue that it should either be abolished or reformed in order to comport more closely with the procedural requirements of due process and the substantive norms of justice. I argue, however, that the chief executive's discretionary prerogative to grant mercy is best understood, in broadly Kantian terms, as an imperfect duty, namely a duty that assigns to the president a moral end (i.e., to act mercifully by granting clemency in appropriate cases), but one that allows him wide latitude in the time and manner of its fulfillment. As such, he is not (as the critics suggest) under a moral obligation to grant clemency in any particular case or even in all relevantly similar cases, at least in the absence of a clear miscarriage of justice. At the same time, the clemency power is not for that reason beyond the reach of critical moral scrutiny, since it remains a duty that attaches to the office of the chief executive, and he is thus morally accountable for its use (or misuse). In particular, if a chief executive refuses to exercise the clemency power at all, perhaps to insulate himself from potential political criticism for being soft on crime, he would be properly subject to moral condemnation for being merciless.

Tom

Tuesday, August 1, 2006

"Can the Secular State Forgive People?"

By Thomas Berg

John McCullough, a former student of mine at St. Thomas, writes with the question below.  John is a fellow at an organization called the Council on Crime and Justice, where he runs an expungement clinic and does policy work on behalf of ex-offenders at the municipal and state level, among other things.

During law school, I started thinking about Forgiveness and the Criminal Law which led me to the work I am doing now. I think finding a place for forgiveness within the criminal justice system is necessary and is good policy. Forgiveness does have the power to transform lives.

My question is whether or not the state has a moral obligation to forgive those that commit unlawful acts. Should the state, at some point, forgive an individual who has repented (i.e. served time, probation, remained law abiding, is rehabilitated) by sealing the criminal record from public view, erasing any collateral consequences associated with the conviction, offering a certificate of rehabilitation, etc. Forgiveness, from what I understand, is a Judeo-Christian virtue. Is there a place for it in the secular state? Can the secular state forgive people?

I am a regular reader of the Mirror of Justice and thought this might be a good topic of discussion. . . .

I also thought you might be interested in the following book: “God Behind Bars: The Amazing Story of Prison Fellowship,” By: John Perry

Any thoughts, from the criminal-law mavens or others?

Tom

Saturday, July 29, 2006

Bush's Former Speechwriter on Christians and Politics

By Thomas Berg

From a Christianity Today interview with Michael Gerson, Bush's recently departed speechwriter and advisor:

Will compassionate conservatism survive rising deficits, the cost of Katrina, and illegal immigration?
    There are some members of the Republican Party who do not understand the power and appeal of this set of issues and who have a much more narrow view of government's role. These issues are very much up for debate. Immigration is a good example. I understand the need for any nation to control its borders. But I do think that people of faith bring a little different perspective to this issue. There's a positive requirement to welcome the stranger and to care for people even if they're not citizens. Human dignity is universal and doesn't depend on what papers you hold. That brings a leavening perspective to a lot of these issues. And it's the perspective the President has brought to this issue. It would be a shame if conservatism were to return to a much more narrow and libertarian and nativist approach.

In my view, there's more than "some members" of the Republican Party who minimize compassionate conservatism": when the rubber meets the road, the dominant strain minimizes it in favor of libertarianism, nativism, or big-business handouts.  We don't all agree on that, but I'm sure we can all agree that we hope that the vision Gerson articulates makes headway within the GOP.

Until recently, the Republican Party and Christian conservatives have complained that government is the problem. Is that a view they will likely return to?
    I think it's a temptation, but I don't think it's going to happen. One reason is because of what's changed in evangelical political involvement.

    I think there are lots and lots of young people, in their 20s to 40s, who are very impatient with older models of social engagement like those used by the Religious Right. They understand the importance of the life issues and the family issues, but they know the concern for justice has to be broader and global. At least a good portion of the evangelical movement is looking for leaders who have a broader conception of social justice. President Bush has provided that in many ways. He ran his initial campaign on education and on faith-based answers to poverty and addiction. And then he's led the international efforts we've undertaken, both on the development and disease side, but also on the spread of human liberty.

You're starting to sound like Jim Wallis!
    No, because I also don't think the answers can be found in the Religious Left. I don't think we can minimize some of the traditional issues. I don't believe it's possible to be concerned about social justice without being concerned about the weakest members of the human family. I also think that America can play an active and positive role in the world and that we're not at fault for everything.

Well, the last sentence is a cheap shot at those who want America to "play an active and positive role in the world" but think this can only happen through generally emphasizing negotiation and multilateralism instead of military force and unilateralism.  He never confronts the moral and prudential costs of the Iraq invasion (even granting that there may still be some benefits from it).  But nevertheless, he makes many worthwhile pointsm, including about care for the unborn, in the worth-reading interview.

Tom

Friday, July 28, 2006

Evangelical Efforts to Convert Catholic Soldiers

By Thomas Berg

An article in Our Sunday Visitor reports on the problem of proselytization of Catholic soldiers by evangelical Protestant military chaplains:

Although the military brass has stepped in on several recent occasions to address concerns about proselytism – including charges raised by a fellow Christian chaplain last year at the Air Force Academy in Colorado Springs, Colo. – the practice continues among many rank-and-file evangelicals who see Catholic soldiers as prime targets. Lacking a solid formation in their faith or an available Catholic priest to visit for counsel, some Catholic soldiers find themselves too poorly equipped to effectively defend church teaching and practices against the evangelicals’ charges.

For the most part, the remedy the article advises is to recruit more Catholic chaplains and supplement them with lay military volunteers to nurture and soldify Catholic soldiers in their faith.  Yet in that first quoted sentence above -- referring to "military officials [s]tepp[ing] in . . . to address [these] concerns" -- the article seems to hint that perhaps military officials ought to protect soldiers (Catholics, presumably others) from conversion efforts by chaplains of other (primarily evangelical) faiths.  If the article is suggesting that, isn't it misguided?  Set aside methods or situations in which conversion efforts are coercive (as they were in the Air Force Academy, apparently) or would undermine soldiers' morale or cohesion.  Outside of those cases, shouldn't the Catholic attitude be that proselytization -- which as Michael McConnell has pointed out, is just a nasty word for "persuasion" -- is a legitimate part of religious exercise, including chaplains' religious exercise?  Shouldn't the Church see itself as an evangelizing church too and seek to join evangelical Protestant chaplains in evangelistic competition -- not ask for limits on those chaplains' activities in order to protect Catholic soldiers from persuasion?

(HT: Christianity Today)

Tom

Thursday, July 27, 2006

More on Estate Tax

By Thomas Berg

If huge numbers of family farmers and small business owners are opposed to the estate tax, perhaps it's because some of them have been worked up by ads like the ones discussed -- and strongly refuted -- here by the independent organization factcheck.org.  The title of the factcheck.org analysis, "Estate Tax Malarkey," gives you an idea of its attitude toward claims that the estate tax hurts lots of farmers and small businesses.  (We can't dismiss Factcheck as a lefty site, because just a month before this paper it had helped refute the claim that abortions had risen during the Bush administration.)

Among the points in the factcheck.org analysis, one seems potentially relevant to Greg's assertion that "[a]pparently at least 15 family farms each year would immediately have to be sold to come up with assets to pay the taxes."  Greg appears to infer that from the passage quoted by Rob that says "at the $2 million threshold, only 15 of the farms would have had insufficient liquid assets to pay."  But the factcheck.org article suggests that for true small farmers and business owners, immediate payment is not necessarily required: 

Worth noting is that family-owned farms and closely held businesses already receive special treatment under current law. Heirs who agree to keep the farm or business assets within the family for 10 years after death can reduce the taxable amount of the estate by 40 percent to 70 percent. And if the farm or business is at least 35 percent of the gross value of the estate, payments can be spread out over 14 years.

Maybe this is another of the reasons why the estimated number of farms that would have to be sold is as low as 15 -- or maybe the number is even lower?  I don't know the answer to that question, but the point is that the tax already makes some provision for the concerns of farms and small businesses. At any rate, 15 farms a year is a very small number in a big nation, when balanced against the long-term costs of repeal worsening an already dangerous budget deficit (and does anyone seriously claim that the estate-tax repeal is any kind of supply-side growth-encouraging measure?).  This seems a small tail wagging a very big dog of repeal.  That's to say nothing of the many proposals that have been made to raise the exemption for farms and small businesses while leaving it unchanged for the heirs of very wealthy families -- a course of action far less regressive than repealing the tax altogether. 

Certainly, the estate tax involves questions of prudence and fact that must be determined in order to apply the principles that CST sets forth.  But surely that doesn't mean ipso facto we throw up our hands and say "well people just disagree"?  A couple of questions and a comment:

1. Of course, one of the "artificial structures or transfers and distributions" that people do to avoid the estate tax is to give to charity.  The CBO estimates that repealing the estate tax would reduce charitable contributions (during life and in bequests) by a net 6 to 12 percent (and I've heard larger estimates).  While of course some charitable causes receiving contributions are morally neutral or even wrong, does CST nevertheless regard charitable contributions as a category as a good thing (and thus presumably be concerned about a measure reducing the incentives to contribute)?  I would think so.

2. Is CST at all concerned about the potential social effects of large inherited wealth (at least beyond what's needed to give people significant incentives to work for their kids' futures) -- effects such as increased inequality in life opportunities and starting points (which differs from inequality in outcomes) and the potential for increased stratification and a less fluid society?  (We might add the negative effects on the heirs themselves, although that is subject to the objection that it is purely paternalistic.)   

3. Greg's post throws up lots of questions about the estate tax without offering data to counter the data Rob cites about the small numbers affected; instead Greg seems to suggest that there's no way we could balance these considerations and reach any kind of judgment about what CST suggests, or which way it points, on this question.  I agree that we have to be careful about making judgments on complex policy questions and have to know all the facts.  But I think there is also a danger on the other side of a kind of "prudentialist relativism," in which, outside of a few issues with categorical rules, we throw up our hands and say it's just so complex we can't reach any judgment.  There needs to be room for intermediate judgments, in which we say that although there is no categorical rule, nevertheless on balance the major principles of CST point in a certain direction on a given question.  (And to answer some of the concerns Rick has raised in the past ... that doesn't the bishops should speak officially on all such things; lay people can take the lead without the implication that therefore the issue in question is up for grabs under CST.)

Tom

Tuesday, July 25, 2006

Law and Aquinas's Metaphysics

By Thomas Berg

U of Alabama lawprof William Brewbaker posts this on SSRN:

"Thomas Aquinas and the Metaphysics of Law"

I argue in the paper that [Aquinas's] Treatise [on Law] cannot be fully understood absent a focus on Thomas' metaphysics and that, indeed, Thomas' metaphysical approach raises important questions for contemporary legal theory. . . .  [Among other things,] attention to Thomas' hierarchical view of reality exposes tensions between Thomas' top-down account of law and his sophisticated bottom-up observations. For example, Thomas grounds human law's authority in its foundation in the higher natural and eternal laws. On the other hand, he is well aware that many if not most legal questions involve determination of particulars - the resolution of questions that might reasonably be answered in more than one way. I argue that his metaphysics sometimes works against Thomas' inclination to give place to human freedom in the creation of law.

Tom

Benedict and Augustinianism

By Thomas Berg

Welcome to my friend and colleague Lisa.  From a few things I've read, I've seen several suggestions about what the pope's "Augustinianism" means:

(1) He is somewhat more pessimistic about the world and the possibilities for the Church benefiting from secular thought.  Not totally pessimistic, but more so, compared with the Thomistic emphasis on human reason in which both Christians and non-Christians share.  See, e.g., this analysis, which doesn't make this distinction exactly, or put John Paul II on the other side, but which does emphasize the "critical stance" toward the world that an Augustinian perspective generates.

Does this contrast with John Paul II?  I'm no expert on this.  But wasn't there frequently a sense in his writings that he was calling the world back to its highest and deepest principles -- protection of life, true freedom, and so forth -- rather than claiming that the orientation of the world was more fundamentally and deeply flawed (the Augustinian emphasis)?  Again, no polar opposites here, but possibly differences in emphasis.

The article I cited above also raises a specific and interesting potential application of this difference.  In his writings on economic life, John Paul II is relatively positive about the market system and the opportunities it  affords for human growth and creativity.  Not unqualifiedly so, of course, but reasonably positive: a kind of "two cheers for capitalism," as Joseph Bottum put it last year.  Augustinians, according to the article I cited above, tend to "take a more critical approach, arguing that there are economic practices characteristic of [global capitalism] that cannot be squared with the social teaching of the Church."  This may fit with Bottum's assessment that Benedict has given and will give only "one cheer for capitalism": that, although certainly no socialist, he "stands to the left of his predecessor on economic issues."  (See here also.)

(2) I also have seen the speculation then that a more critical stance to the world will lead Benedict to favor a leaner, more doctrinally faithful if smaller Church.  (But couldn't this come in tension with the Augustine who fought the Donatists, the people of their time who wanted a leaner, uncompromised church?)

(3) "This Augustinian orientation has made the new pope more sensitive to issues of spirituality in the life of faith" in contrast with a relatively greater Thomisic emphasis on reason.  That's a quote from evangelical theologian, and a leader in the evangelical-Catholic discussions, Timothy George.  I doubt that there's much difference from John Paul II here -- didn't he place a great deal of emphasis on spirituality (although it seems to have come from other philosophical sources)?  In any event, the analysis I cited in #1 adds:

Pope Benedict is one of the many members of his generation who, while not disagreeing with the content of Thomist thought, believed that the scholastic presentation of the faith doesn't exactly set souls on fire unless they happen to be a particular type of soul with a passion for intellectual disputation. He has said that "scholasticism has its greatness, but everything is impersonal."

In contrast, with Augustine "the passionate, suffering, questioning man is always right there, and you can identify with him."

(4) According to George, Benedict's Augustinianism "has also given him a keen appreciation for another great German theologian, the Augustinian monk and church reformer Martin Luther. This enabled Ratzinger to play a key role in the historic Joint Declaration on the Doctrine of Justification, an important agreement between Lutherans and Roman Catholics."

I don't know enough about Ratzinger/Benedict to evaluate all these points; and perhaps I've emphasized issues of particular interests to Protestants like me.  But I thought I'd lay out these suggestions that I've read, and see what others think.

Tom

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