I appreciate Rob's recent queries about the cash value of my understanding of the principle of subsidiarity. Before I can turn to Rob's three points, there's a threshold issue. My paper is a deliberate attempt to apply the principle as understood in the Church's social doctrine to a concrete social problem of contemporary America. Where would the Church's principle get us in terms of allowing poor parents to give their children the education they (and the Church) judge that they should have. I may well be wrong in my understanding of the magisterium's teaching about the principle (indeed, on reason to steer clear of subsidiarity in trying to advance the discussion in Catholic terms is that the term has been used in too many senses, including by the popes), but there are texts to consult, parse, interpret, and, of course, judge for whether or not they articulate a true principle. I think I do affirm as true the principle as articulated in the magisterial teachings, and I would add that Rob's version of the principle seems to me different from the magisterium's. For purposes of the present discussion, however, let's leave behind what the magisterium has said about subsidiarity. Let's just ask what people mean by subsidiarity and whether those propositions are true.
If we're not talking about the Church's understanding of the principle, then what are our sources for saying what the principle is/means. Common usage? I would agree with Rob that in common usage, the principle is (roughly) that ruling authority should devolve to the lowest level at which it can be exercised competently. But is this true? Is it true that power should devolve to the lowest level at which it can be exercised competently? Rob seems exclusively to be asking whether the principle is "helpful" or useful. I'm asking whether it is true. Of course, I do believe that the true is both useful and helpful, in a very deep sense, but there's no guarantee of its convenience or utility.
My answer to my last question is no. That is, there does not exist a true moral principle that calls for the devolution of power to the lowest level at which it can be exercised competently.
Why? As I see things -- that is, I affirm as true that -- we confront a world in which ruling authority is always already distributed, at least in potency. Subsidiarity, furthermore, is a derivative principle that describes the relations that do or should obtain among those ruling authorities. The common conception of subsidiarity as calling for devolution makes the assumption that ruling authority starts at the top (in "the state") and should then be made to devolve according to a criterion of competence/efficiency. The conception of subsidiarity I am affirming as true proceeds from a prior judgment that authorities are plural and primordial to begin with, never the sole possession of the sovereign state, then it then to parcel out and downward. From the prior judgment, about ruling authorites that are already out there (at least in potency), I derive the the principle of subsidiarity that provides a norm for relations among those authorities.
But it's that prior judgment that is the stumbling block for most people, I suspect. So, to take Rob's third point, a sufficient reason that the state shouldn't force the Church, as a condition of assisting in any adoptions at all, to assist with adoptions to same-sex couple, is that to do so would be to trench on the Church's ruling authority that the Church posssesses not as a concession of (or conditional devolution from) the state.
The question is always whether there is, at least in potency, genuine ruling authority. When there is, subsidiarity kicks in, if you will. So, what about Rob's second point, concerning "local empowerment?" The question I would ask about a local group is whether it is posessed, at least in potency, of genuine ruling authority. I would reach different judgments about trade unions that seek just wages and well-organized lnych mobs. I'm sure job would too, but my point is that "local empowerment" is not a freestanding norm.
On the principle I affirm as true, authority derives, in part, from conformity with the true and the good. So, finally, with respect to Rob's first point, I'm not making an argument in favor of "imposing truth claims." Communities that possess genuine authority must in fact co-exist with other communities, according to judgments of "prudence," but not every group we have to co-exist with is possessed of genuine authority. The world stage is ample evidence of this. Power is different from authority.
I suspect Rob and I disagree, at least in part, about the contents of the ontology that precedes the possible operation of the principle fo subsidiarity. Some of what I affirm as the contents of that ontology I reach based on the contents of Christian revelation, some on basis of natural morality. Which leads me back to one issue in Rob's third point. I don't believe that the Church's affirmation of a right to religious liberty contains a right to conduct that violates natural morality. It may be prudent to tolerate such conduct, and of course -- and this is the point -- we argue argue even among friends about the contents of natural morality, but this much at least, I think, is true: the Church teaches that there is a naturally accessible morality that is binding on all rational humans.
Perhaps it's at the level of this last claim that our disagreement begins. On the position I'm taking, it is because we -- individuals and socieities have naturally- and supernaturally-given functions to perform that we can have genuine authority, and it is from the marvelous plurality of such authorities -- from schools, families, Church, unions, etc. -- that the principle of subsidiarity is derivative. Rob worries (point two) that if people agree about morality and act accordingly, subsidiarity will go out of business. On my position, a world of morally upright actors would contain authorities beyond numbering, and subsidiarity would faciliate their interaction.
There's much more to say about this (especially about this notion of "functions"), and I'm conscious of not having done justice to Rob's points. It's amazing how much two people who both want to use the word subsidiarity to benign purposes can disgree about. I know I agree with Rob that very often the "lowest level" will in fact be where ruling power should be located -- but we get there by very different routes, and my route depends an an ontology of authority that Rob probably won't find acceptable. Again, there's a lot more to be said about this, some of which is in long text of my "Harmonizing Plural Socieities" paper. (Btw, thanks, Rob, for your respectful attention to the paper). On authority specifically, there's more -- from a different angle, however -- in my "Locating Authority in Law" paper, which is posted on the right here.
Tuesday, March 27, 2007
I've blogged here before concerning the wanton closing of my childhood parish. Sorry to be a bore, but the story isn't mine alone. Now Amy Welborn is linking to the most recent report about the closing and systematic desecration of St. Brigid, perhaps the most beautiful church in San Francisco and a parish that was, by all reasonable, relevant standards, doing just fine when Archbishop Quinn decided it would be useful for it to come to an end. http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/03/25/MNGRSKRH2E223.DTL
This isn't just the now-usual business of selling everything to pay for the mistakes. A long time ago, but within clear memory, Archbishop Quinn's administration decided to reorangize the Archdiocese of San Francisco. Bells that used to ring out joy were ripped down and thrown away. Why?
One thing the San Francisco Chronicle doesn't report this time -- it did years ago -- concerns how that administration's administration allowed the pastor of the neighboring (rich) parish to the vote to close St. Brigid, the parish that would most benefit from St. Brigid's destruction/suppression (btw,the parish of which he was previously an associate pastor). Canon Law covers this stuff-- and for good reason.
Rome, thank God, ALMOST came to the rescue. One almost has to read the Chronicle -- the current story as well as many in the '90s and since -- to believe how Quinn manoeuvered to end the parish. Its sale would generate the most money -- as the Chronicle alone revealed, back in the day -- to pay the settlements that, as we see now, loomed.
Arch. Quinn's reported egalitarian protestations to Rome, about why not to save a "rich" parish when others would go hungry, should be read against the record that reflects -- and unequivocally -- that the parish promised not only to retrofit and support itself, but also to retrofit any parish of the Archbishop's selection. Etc. Be sure to add the fact that the Archdiocese harvested nearly one million dollars from closing the parish's savings account. This is a story that reflects ill on almost all the American clergy involved, so far as I can tell.
Fr. Cyril O'Sullivan, however, is a hero in the story. He won't remember me, but I remember much of what he did back when the destruction loomed and then began. (Before and while he was defending the parish against the demolition artists, he was a wonderful minister to those who came to St. Brigid to pray and worship). Many members of the laity at St. Brigid, including some mentioned in the Chronicle, also deserve great thanks.
St. Brigid church is now an "art university."
Thursday, March 22, 2007
MOJ's very own Rick Garnett was at Villanova yesterday to give the annual Gianella Memorial Lecture, and his title was "Do Churches Matter? Towards an Institutional Understanding of the Religion Clauses." The roster of earlier Gianella lecturers includes MOJers Steve Bainbridge and Michael Perry, as well as our friends Steve Smith, Joe Vining, and Cathy Kaveny. Not surprisingly, Rick kept the standard very high, raising a really interesting and important question with his charactertistic subtlety. As his title suggests, Rick is among those who suspect that the Court has taken an unjustifiably individualistic approach to what rights "religion" may and should have under our Constitution. I hope Rick will post the paper soon. For now, I'll just float one question I pursued with Rick yesterday. Granted that "establishment" provides a textual hook for a more institution- or group-friendly approach to our first freedom, what about originalist grounds for such a kindred approach? The world assumed by the framers and ratifiers was ontologically dense with group persons that were understood to precede "the state." True, some, such as Madison, took a remarkably individual-centered turn when they came to justifying a legal protection of religious freedom, but such justification is consistent with an affirmation that freedom for individuals may not be sufficient freedom for meeting religious demands. As the pictures of the monks being evicted from the monasteries in the mountains of France early in the last century (i.e., not all that long ago) testify, something central is lost when the cenobium is dissolved. As Russ Hittinger has argued, the cardinal sin of the modern state is its assertion of a monopoly on group personhood. The framers of our Constitution did not suppose with Hobbes, Rousseau et al. that group persons exist by right only as a concession of the state.
Wednesday, March 21, 2007
The recent discussion here about families brings to mind Maritain's observation that the history of families is no prettier than that of any other human history, including that of "the state." Different authorities -- family is one among many, and the state is the servant of all of them -- do better at different times. The difficulty, I suspect, is to stay with the insight that the authority of parents over their children is primary and does not depend from moment to moment on its correct or successful exercise, at least not in the main. Most mistakes do not divest parents of the rights that are the correlative of their duties to their children; some mistakes may, either temporarily or perhaps permanently. I can't quote anything as snappy as the poem Mark S. adduced, but I was just now motivated to look up this moving-because-realistic passage from Maritain: "Not only the examples of parents, and the rules of conduct which they inculcate, and the religious habits and inspiration which they further, and the memories of their own lineage which they convey, in short the educational work which they directly perform, but also, in a more general way, the common experiences and trials, efforts, sufferings and hopes, and the daily labor of family life, and the daily love which pushes forward in the midst of slaps and kisses, constitute the normal fabric where the feelings and the will as of the child are naturally shaped." Freakishly bad parenting will need to be supplanted and compensated for, but the ordinary sort, which is, after all, just ordinary, has both the right to go forward and the hope of freely given help.
Sunday, March 18, 2007
BRASILIA, Brazil, MARCH 18, 2007 (Zenit.org).- Debate continues over so-called homophobia legislation, which seeks to criminalize anything considered a condemnation of homosexuality, including priests who speak against the practice in homilies.
Priests could face two to five years imprisonment for preaching against homosexuality. And a rector of a seminary who refuses admission to a homosexual student could face three to five years.
Thursday, Brazil's Senate declined to vote on the legislation. Instead, the senators decided to form a work group, which will organize public audiences to hear specialists on the subject.
According to ZENIT sources, a number of citizens voiced opposition to the law, motivating in part the senators to form the study group.
Specialists say the "homophobia law" would essentially imply a legal frame for religious persecution.
One source told ZENIT: "In addition to the rights established in the constitution for all people, the homosexual, by the simple fact of being homosexual, would gain privileges."
Maria das Dores Dolly Guimarães, lawyer and president of the Paulist Federation of Movements in Defense of Life, explained: "Whoever dared to criticize such behavior would be treated as a delinquent."
ZE07031828
Friday, March 16, 2007
Eucharistic consistency
"83. Here it is important to consider what the Synod Fathers described as eucharistic consistency, a quality which our lives are objectively called to embody. Worship pleasing to God can never be a purely private matter, without consequences for our relationships with others: it demands a public witness to our faith. Evidently, this is true for all the baptized, yet it is especially incumbent upon those who, by virtue of their social or political position, must make decisions regarding fundamental values, such as respect for human life, its defence from conception to natural death, the family built upon marriage between a man and a woman, the freedom to educate one's children and the promotion of the common good in all its forms (230). These values are not negotiable. Consequently, Catholic politicians and legislators, conscious of their grave responsibility before society, must feel particularly bound, on the basis of a properly formed conscience, to introduce and support laws inspired by values grounded in human nature (231). There is an objective connection here with the Eucharist (cf. 1 Cor 11:27-29). Bishops are under the obligation to repeat these precepts without ceasing; for this is part of their duty toward the flock entrusted to them. (232)."
Thus Benedict's Apostolic Exhortation Sacramentum Caritatis on several of the questions that have been most worried on this our blog about the meaning of the Catholic religion for Catholics in public life. I couldn't be more in agreement with the contents of par. 83, of course, but one has to wonder . . . Will those who refuse to accede to the truth about the natural ends of human life, marriage, and family be moved by a magisterial pointing out of those ends' connection to a supernatural mystery of Christian faith? Perhaps we can begin by hoping that -- even now and late in the day, when most American Catholics are persuaded, or at least concvinced, that they are called upon to be principled (!) relativists in public life -- the American bishops will begin to "repeat these precepts without ceasing?" If the faithful don't hear it from their pastors, they won't hear it. And if they don't hear it, how can they be "faithful?"
Tuesday, January 30, 2007
The second annual Scarpa Conference will be held on October 16, 2007, in Villanova University's Connelly Center. Its topic will be "The Judicial Office in Our Constitutional Democracy: Avoiding Dogmatism on a Disputed Question." Please mark your calendars, and please spread the word to others who might be interested. All are welcome. Details about registration will be available as the time approaches. Mark Sargent and I hope to have the opportunity to welcome lots of MoJers and friends-of-MoJ to Philadelphia and Villanova for what promises to be a rich discussion and perhaps colorful discussion of a deeply important and widely debated cluster of issues in (Catholic) legal theory.
Justice Antonin Scalia will deliver the keynote address. Also presenting papers at the Conference will be Professor Paul Kahn, Professor Jean Porter, Professor James R. Stoner, and Professor Jeremy Waldron.
Paul Kahn is the Robert W. Winner Professor of Law and the Humanities and Director, Orville H. Schell, Jr. Center for International Human Rights at the Yale Law School. Professor Kahn is the author of Legitimacy and History: Self-Government in American Constitutional Theory; The Reign of Law: Marbury v. Madison and the Construction of America; The Cultural Study of Law: Reconstucting Legal Scholarship; Law and Love: The Trials of King Lear; Putting Liberalism in Its Place; and Out of Eden: Adam and Eve and the Problem of Evil.
Jean Porter is the John A. O'Brian Professor of Theology at The University of Notre Dame. Professor Porter is the author of Natural and Divine Law: Reclaiming the Tradition for Christian Ethics; Nature and Reason: A Thomistic Theory of Natural Law; Moral Action and Christian Ethics; and The Recovery of Virtue: The Relevance of Aquinas for Christian Ethics.
James R. Stoner, Jr., is Professor of Political Science at Louisiana State University. Among his many writings are Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism and Common Law Liberty: Rethinking American Constitutionalism.
Jeremy Waldron is University Professor at New York University. He was previously University Professor at Columbia University. Professor Waldron came to Columbia from Princeton University, where he was the Laurance S. Rockefeller Professor of Politics. Among Waldron's books are God, Locke, and Equality: Christian Foundations of Locke's Political Theory; The Dignity of Legislation; Law and Disagreement, and The Right to Private Property.
Announcement:
SECOND ANNUAL SCARPA CONFERENCE
IN CATHOLIC LEGAL STUDIES
The Judicial Office in Our Constitutional Democracy:
Avoiding Dogmatism on a Disputed Question
Aristotle taught that ideally we should prefer to be ruled by the animate justice of the wise man, but prudentially we must prefer judges who give effect to written law. Thomas Aquinas agreed: "Since . . . the animate justice of the judge is not found in every man, and since it can be deflected, it was necessary, whenever possible, for the law to determine how to judge, and for very few matters to be left to the decision of men." Aquinas taught, furthermore, that faced with an unjust law, the judge must refuse to proceed to judgment. The judge was to be a twice-measured measure - first by the written law, then by justice. Contemporary Catholic social doctrine is in accord.
From a range of starting points, many contemporary legal and political theorists reject a justice-based limitation on the judicial function. From the left, the leading argument is that "justice" is inevitably only a cover for politics, with the result that the judge should not be empowered to substitute her politics for that of the majority. From the right, the predominant argument is that a proper commitment to democracy requires a democracy-forcing judicial office. Justice Antonin Scalia has urged a "dogmatic democracy."
The Second Vatican Council (1962-65) was, remarkably, silent on the topic of democracy. Although Catholic social teaching since the Council has offered encouragement to those working on behalf of democracy, it has consistently denied that a democratic pedigree is sufficient to justify legislation or judicial judgment. The Compendium of the Social Doctrine of the Church (2004) warns against theories of political legitimacy that would exempt the products of democratic process from institutional moral scrutiny.
How are we to define, so as to be able to legitimate, the judicial office in our constitutional democracy? "The judicial power is neither a platonic essence nor a pre-existing empirical classification," Paul Bator observed. "It is a purposive institutional concept, whose content is a product of history and custom distilled in the light of experience and expediency." In the spirit suggested by Bator, the Second Annual Scarpa Conference in Catholic Legal Studies will inquire into how to determine the metes and bounds of the judicial office, with special attention to its relationship to democratic legitimacy and to the unique demands of the modern administrative state.
By bringing the perspectives of the Catholic tradition into dialogue with those of contemporary Anglo-American jurisprudence and political theory, the Conference will provide an opportunity to develop fresh critical perspectives on the "purposive institutional concept" that, as a matter of fact, shapes the judicial practice that in turn decides the directions that we can or cannot take in this democracy. If the majority loses sight of the demands of justice, natural law, and natural right, does political morality or constitutionalism demand that the judge refrain from going beyond the positive law? In the long run, can we be "dogmatic" about democracy?
Tuesday, January 16, 2007
A few readers, having read my earlier post, have asked after Archbishop Wuerl's San Diego statements. Here they are, from the California Catholic Daily.
Not his style
Archbishop Donald Wuerl goes on record: he will take no action to prevent Nancy Pelosi from receiving Communion despite her obstinate support of abortion and same-sex marriage
Archbishop Donald Wuerl of Washington, D.C., who has come under fire for failing to speak out against Speaker of the House Nancy Pelosi’s attendance Jan. 3 at a Mass at her alma mater, Trinity University, came to San Diego’s Kona Kai Resort the weekend of January 13-14 to speak at an international Communion and Liberation conference.
While in San Diego, Wuerl told California Catholic Daily reporter Allyson Smith that he has no plans to discipline the newly elected Democratic Speaker, who is now the most powerful Catholic in Congress -- and an ardent supporter of abortion, embryonic stem cell research, and pro-homosexual legislation.
Smith: “Did you make any statement last week about Nancy Pelosi going to Mass at Trinity University?”
Wuerl: “That was a matter between the university and Nancy. They were offering their location, and the Mass was celebrated by a priest with faculties, and there was no reason to make any comment.”
Smith: “Do you intend to discipline her at all for being persistent and obstinate about her support for abortion and same-sex marriage?”
Wuerl: “I will not be using the faculty in the manner you have described.”
Smith: “Will you make a statement to your priests and deacons to warn her not to allow her to receive if she presents herself for Communion?”
Wuerl: “You’re talking about a whole different style of pastoral ministry. No.”
Smith: “No? Thank you.”
Pelosi has been roundly criticized in conservative Catholic circles for publicizing her attendance at the Trinity University Mass and another recent visit to St. Leo the Great church in Baltimore in an effort to recast her image from that of a liberal San Francisco Democrat to that of an Italian Catholic grandmother.
Prior to the Mass at Trinity, American Life League president Judie Brown implored Archbishop Wuerl to intervene in the matter. “Rep. Pelosi has a tremendous opportunity to make a difference for all human beings as the most powerful Catholic in Congress,” said Brown. “Unfortunately, she continually supports the very act that destroys life rather than protects it. It is for this very reason that a Catholic institution should not condone or support her position as a legislator.”
The purpose of Archbishop Wuerl’s San Diego visit was to attend Communion and Liberation’s “Conference on the Occasion of the Publication of The Journey to Truth is an Experience,” a book by the organization’s founder, Monsignor Luigi Giussani. Wuerl participated in a panel on the topic “Education and the Christian Experience.” Other panelists included international leader of Communion and Liberation Fr. Julian Carron and Theology and Christian Scriptures professor Rev. Dr. John W. Wright of Point Loma Nazarene University. The panel was moderated by theologian Monsignor Lorenzo Albacete.
According to promotional literature distributed at the event, “Communion and Liberation is an international ecclesial movement in the Catholic Church founded by the late Msgr. Luigi Giussani in 1954.” The group’s mission “is the education of its members toward Christian maturity, and collaboration in the mission of the Church in all spheres of contemporary life. CL is today present in over 70 countries throughout the world and in more than 120 cities in the United States.”
