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.

Thursday, April 28, 2005

Benedict XVI and Capitalism

By Thomas Berg

Meet the Press had a very interesting discussion last Sunday on the new Pope and the future of the Church (transcript here).  Thomas Cahill (author of The Gifts of the Irish and other popular books) made the familiar complaints about the Church's opposition "to masturbation, premarital sex, birth control (including condoms used to prevent the spread of AIDS), abortion, divorce, homosexual relations, married priests, female priests and any hint of Marxism."  Jody Bottum of the Weekly Standard responded as follows:

You know, one of the great problems here is that in that litany, for instance, that Mr. Cahill gave, of things that he wants, only the very last item and that understated a hint of Marxism had anything to do with economics.  The great narrowing of the liberal tradition has come down to almost all having to do with sex and gender.  One of the great underreported facts about the new pope is that he actually stands to the left of his predecessor on economic issues.  He came out of Germany where they always thought they were going to split the difference between Marxism and capitalism anyway...

MR. RUSSERT:  A social democratic tradition.

MR. BOTTUM:  Right.  And he is to the left of him.  If the 1991 encyclical from John Paul I [sic], Centesimus annus, might be described as three cheers for democracy, two cheers for capitalism. Ratzinger, now Benedict XVI, would have gave only one cheer, but you wouldn't know that from all of the coverage that describes him as hard-liner, conservative, authoritarian because the great liberal tradition even within the church, even Mr. Cahill speaks for, has been narrowed down until it's all just about sex.

Two comments:  First, Bottum seems dead right about the increasingly narrowed focus of the "progressive" tradition and the Democratic Party on matters of sexual autonomy.  Notice, for example, that what seems to get so many liberal pundits the most upset is not persisting poverty or world hunger, but rather the Christian right "imposing its morality on others."  And to to be a "moderate" or "new" Democrat these days mostly means that you (a) keep the commitment to unrestricted abortion and (b) become more like the Republicans on economic issues such as upper-bracket tax cuts.  The missing perspective in American politics is the one that is "traditionalist" on sex and family issues but "progressive" on economic issues.  Whatever you ultimately think of that perspective on its merits, its relative absence has left a noticeable, and I think very unfortunate, hole in American political discourse.

Second, I'm interested to learn more about Pope Benedict's past writings on economic issues.  Bottum is certainly right that there's been almost no reporting of this angle; is he right in his characterization of the Benedict's past positions ("to the left of" John Paul II)?  I'm going to go looking for the information; but in the meantime, readers' input welcome.

Tom Berg

Monday, April 18, 2005

More on Pharmacists and Conscience

By Thomas Berg

Various lawsuits have been filed against Illinois Governor Blagojevich's rule requiring dispensing of the "morning after" pill, including this one where the plaintiff is represented by the Center for Law and Religious Freedom of the Christian Legal Society (full disclosure:  I serve on their advisory board).  The following excerpt from the press release suggests a couple of points:

The lawsuit alleges that Governor Blagojevich's rule is void because it violates Mr. Scimio's rights protected by [among other things] the Illinois Healthcare Right Conscience Act. . . .

David Scimio is a pharmacist at Albertsons, a grocery store in Chicago, and a Christian. Mr. Scimio believes that human life is sacred, that life begins at the moment of conception, and that the destruction of a fertilized human ovum ends a human life. Mr. Scimio, consistent with his Christian beliefs, does not dispense emergency contraceptives, such as the "Morning After Pill" or "Plan B." Albertsons accommodated Mr. Scimio's religious beliefs until it was required to order Scimio to comply with Governor Blagojevich's "emergency rule" earlier this month. Under that accommodation, Mr. Scimio would refer patients seeking "Plan B" to another pharmacy less than five hundred yards from his store.

Rob, in his discussion of this issue, advocates protecting "value pluralism" on the issue of the morning-after pill by leaving the decision to each employer (pharmacy).  But the health-care conscience act on which Mr. Scimio relies would (if it's applicable to pharmacists) protect him not only from sanctions by the state, but also from sanctions by his employer.  In this particular case, the employer apparently accommodated the pharmacist until the governor stepped in and forced the accommodation to end.  But the conscience act, if applicable, would bar even the employer firing the pharmacist on its own initiative.  Health-care right-of-conscience acts in states around the nation do this.  The Medicare and Medicaid statutes contain a protection for individuals against being fired for refusing to participate in a Medicare/Medicaid-funded medical procedure on the ground of religious or moral conscience (42 U.S.C. § 300a-7).  Title VII of the Civil Rights Act also requires employers to make "reasonable accommodations" of employee's religious practices.

All of these statutes -- Rob, do you think they're all a bad idea? -- reflect the judgment that "value pluralism" should be protected not solely through the employment market, but by directly shielding the individual's right to decide whether to participate in giving health care that s/he believes is morally wrong.  (Actually, it's not necessarily the solitary individual acting; objecting pharmacists have joined together in the group Pharmacists for Life, which it seems to me qualifies as among the associations to which Rob refers, that "create and maintain identities that diverge from -- and even defy -- the surrounding society's norms."  At the very least, isn't Pharmacists for Life a better "identity-creating" association than Walgreen's?)

Protecting value pluralism through the market -- let each employer/provider decide -- is often a sensible strategy.  But it is ineffective if the market becomes concentrated, as may well be the case with pharmacies (my untutored impression is that the "mom and pop"s are steadily getting crowded out or snapped up by the national chains.)  If two or three of those chains require all their pharmacists to dispense morning-after pills, objecting pharmacists may be driven out of their life's work as a price for their conscience, which is a high price to pay in a society supposedly committed to the importance of conscience.

Of course, if the market were concentrated and instead a few chains refused to dispense contraceptives, that would make contraceptives effectively unavailable.  The alternative approach to simply letting the market take its course is to accommodate the pharmacist's right of conscience as long as there are alternative ways for women to get contraceptives -- either from some other pharmacist at this store, or from another store nearby (like the one that, according to the Illinois complaint, was 500 yards away).  This is a somewhat harder decisionmaking standard to apply.  But it has advantages over simply relying on the market, which tends to protect "value pluralism" only indirectly.  In a modern consumerist society, the value that tends to drive out all the others is "give the people what they'll pay for."  That's not to dismiss the depth of moral arguments about the need for women to have access to contraceptives.  It's just to say that the market will tend to respond to those who need or want to buy a legal product; so maybe those whose conscience forbids them to provide such a product need some protection from the law.

Tom

Saturday, April 16, 2005

Virtue, Sin, and Law

By Thomas Berg

I've given Mark's critique of law and economics only a quick read, and even on detailed reading I doubt I'd have anything particularly insightful to say.  However, I was thinking about Steve's argument that (in Mark's words) "law and economics . . . provides appropriate rules for a fallen world" and Mark's response that this conflicts "with the Aristotelian and Aquinean concept of virtue and the conception of civic happiness articulated by . . . Catholic economists."

The virtue-based emphasis of Catholic social thought was also the subject of a talk here at St. Thomas this week by Mark Massa, who teaches theology at Fordham.  (You can listen to the talk here with Real Player; click on the April 15 "Midday" show, and he's the first half.)  Professor Massa argues (as he does in this book as well) that anti-Catholicism in America stems from a fundamental difference between the typically Catholic and typically American (and Protestant) ways of looking at the world.  Borrowing from U. Chicago theologian David Tracy, Professor Massa argues that Catholic thought takes an "analogical" approach to theology, seeing truths about God embodied in things in this world, including the Church.  By contrast, the Protestant groups that set the main course of American thought have taken a "dialectical" approach to theology, emphasizing the distance and divergence between God and the world and the dangers of idolatry that lurk in making analogies between the two.  This attitude tends to bring all institutions, including the Christian Church, under critique, primarily by the individual conscience.  But more to the point here is that the analogical approach tends to emphasize the pursuit of virtue in formulating laws, while the dialectical approach tends to emphasize the pervasiveness of sin and the limited function of law in maintaining a basic social order.  (This should be familiar to those who have studied the social ethics of, say, Aquinas versus Luther (and I'd add Augustine).)

As one who believes in the centrality of "original sin" as a Christian concept, but also is greatly attracted to Catholic social thought (CST), I think and hope that CST -- and indeed any good Christian social ethic -- can give proper weight to both sin and virtue.  That is, development and articulation of legal norms should take into account both the importance of embodying and encouraging virtue and community through law, and the need to adjust law to the pervasive reality of human limitations such as self-interest, lack of knowledge, and so forth.  The most convincing Christian arguments combine the two.  I think, for example, of Reinhold Niebuhr's defense of democracy from Christian premises:  "humans' capacity for justice makes democracy possible, but humans' capacity for injustice makes democracy necessary."  That's just an aphorism -- summarizing the argument Niebuhr made in full in The Children of Light and the Children of Darkness (1944) -- but it exemplifies the kind of double-barreled argument I mean.

I guess that, as a total layman on law and economics, I'd ask how Mark's "virtue" approach makes appropriate room for original sin, and how Steve's "fallen man equals economic man" approach makes appropriate room for "original virtue."  (I can think of answers on both scores, but posing the questions might help frame a discussion.)

Tom

Wednesday, April 13, 2005

More on Terri Schiavo Case

By Thomas Berg

The new issue of The Christian Century magazine has an article by Allen Verhey of Duke Divinity School on Terri Schiavo and the nutrition/hydration issue.  Because Verhey tries to present arguments from Christian premises on both sides, as sympathetically as possible, the article may be useful as a teaching tool.

Verhey presents the argument for maintaining nutrition and hydration:

    "Terri might not count for much as the world counts, but she surely counts as among 'the least of these' in Jesus’ parable. 'In as much' as you gave food to the hungry or drink to the thirsty, Jesus said, you did it 'as unto me' (Matt. 25). . . .

    "If we fail to see life as a good, as a benefit to her, we have evidently accepted an unbiblical and Cartesian dualism of body and soul, reduced the self to its powers of rationality and choice, and reduced the body to a mere container for what’s really important and valuable."

Then he presents the argument on the other side:

    "Christians regard life as a good, to be sure, but not as a second god. Remembering Jesus and following him, we can hardly make our own survival the law of our being. Christians may refuse medical care so that another may live. They may refuse medical procedures that may lengthen their days but do nothing to make those days more apt for the tasks of reconciliation or fellowship.

    "It is not shocking that Terri would have suggested she would not want artificial nutrition and hydration if she were in a persistent vegetative state. That decision must be honored if we would respect Terri’s Christian integrity. . . .  If we regard the preservation of her biological life as a benefit to her, then we have evidently adopted an unbiblical vitalism, reduced her to her body and her body to a mere organism."

He characterizes the issue between the two competing arguments:  "Both sides agree that Terri is to be treated and cared for as an embodied self. They disagree about whether the greater risk is that she will be reduced to her capacities for rational choice or that she will be reduced to a biological organism."

Wednesday, April 6, 2005

John Paul II and Evangelical Christianity

By Thomas Berg

Thanks to Mark, Rick, and all the other MOJers for welcoming me onto the blog, especially as a "separated brother."  I am mostly interested in reading others' thoughts about Pope John Paul II, but let me offer one modest contribution on an issue of particular interest to me, as a Protestant who studies how cultural shifts have affected law and public life.  One of the most important changes in American Christianity in the past generation has been the growing cooperation and respect between Catholics and evangelical Protestants.  Evangelicals were once the group most suspicious of Catholics -- most suspicious, for example, of Al Smith and John Kennedy as presidential nominees.  But now they more and more read books by Catholic writers, cooperate with Catholics on moral-political issues, and regard at least many of their Catholic brethren as authentic, not just nominal, Christians -- that is, as believers with a "personal relationship with God."  The increased openness goes the other way too, from Catholics to evangelicals.  (I wish that the interest of evangelicals would extend more to aspects of Catholic social thought that challenge some modern "conservative" positions on economics, but that's another subject....)

My main point is to suggest the powerful role that John Paul II played in these changes.  Evangelicals developed a considerable respect for him that did much to increase their respect for the Church and for Catholic life in general.  (Think of the flags at half staff that Michael S. reports throughout Protestant Oklahoma.)  One obvious factor was the Pope's leadership on social and moral issues important to evangelicals:  how he spoke against communism and put opposition to abortion and euthanasia in the framework of the Culture of Life.  Evangelicals, with their emphasis on "scripture alone," have a real need for intellectual frameworks like this that emerge from the Church's tradition of moral reasoning.

But a second factor in the Pope's appeal, I think, is that he reflected some fundamentally "evangelical" qualities, the parts of the Christian faith that evangelicals treat as central.  One Mennonite writer, for example, described the appeal of the Pope's "personal witness":  "John Paul showed us it was possible to be committed to the sacraments and the institutional church, and the same time to be committed to personal conversion and the Scriptures in the way that evangelical Christians have always been."  During the Pope's final hours last  weekend, I was in Chicago for family reasons and had occasion to talk with many evangelical friends of my parents and family.  Several of them emphasized that they could tell from the Pope's life and statements that he had a deep "personal relationship with God" in Christ.  I imagine that evangelicals are saying this far more of John Paul II than of any other Catholic figure in modern times.

It was, of course, a wildly inaccurate stereotype for evangelicals to suggest that Catholics as a rule didn't have a personal relationship with God (as it is also an inaccurate stereotype to say that evangelicals never do any hard thinking about Christian faith but merely read the Bible mechanistically).  There is obviously a rich Catholic history of personal conversion and personal spirituality.  Nevertheless, Catholicism and evangelicalism each have their distinctive strengths and their distinctive risks; and an institutional, sacramental church runs the risk of overlooking the personal aspects of Christian faith.  John Paul II both proclaimed and exemplified a vibrant personal faith.  He both called Catholic laypeople to personal faith and dispelled the stereotype that Catholics did not have such faith.  I believe that this, as well as his stands on moral and social issues, attracted evangelical Protestants to him.

As I remember, George Weigel's biography also refers to John Paul II as an "evangelical" Pope because of the way he proclaimed the Christian gospel in all corners of life -- taking it physically to all parts of the world in his travels, and applying it to so many areas of life in his writings.  The news reports this weekend mentioned the Pope's statement that he had wanted to follow the model of St. Paul as well as St. Peter -- that is, to act as a missionary to the world as well as a shepherd to the flock.  He surely did.

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