The importance of "moral anthropology" for the enterprise of law is a theme that many of us, including me, have returned to time and again (and again and again) here at MOJ. (It was the subject of one of my very first posts, nearly ten years ago!). Over at Public Discourse, Nathaniel Peters has a book review, "Theology, Anthropology, and Economics" that puts this theme at center stage.
He is reviewing "Papal Economics: The Catholic Church on Democratic Capitalism from Rerum Novarum to Caritas en Veritate", by Maciej Zieba (link). Here is an excerpt from the review:
[T]he true measure of a government is whether it respects the rights of its citizens and cares for their needs. A healthy democracy, Zieba argues, must be founded on right anthropology. Five truths in particular serve as an “anthropological minimum”: the certitude that the actors in society are equal; the conviction that the majority of people will behave rationally; the conviction that people are prepared to distinguish good from bad, and that the majority is apt to choose the good; the pursuit of the common good as theraison d’être of the political community; and generosity toward minority groups.
In other words, “the foundation of liberal democracy is something that liberal democracy itself cannot guarantee.” It is the truth, particularly the truth about human nature, that provides the foundation for freedom and justice, which must be oriented toward what is truly good and human. A free economy, a just government, and a sound moral culture serve as the three pillars of a flourishing society. All of them, in turn, must be founded on and reflect sound anthropology.
My friend Noah Feldman (Harvard) has an op-ed piece up at Bloomberg called "If Businesses Can Talk, They Can Pray." It is about the HHS-mandate cases the Court has taken up (Hobby Lobby, etc.) with an eye back to the Citizens United decision. Feldman writes:
Start with corporations, which logically shouldn’t enjoy religious liberty rights any more than they enjoy free speech rights. The Framers would have laughed at the Citizens United decision that gave corporations carte blanche to make campaign donations, because to them corporate bodies were artificial creatures designed to perform certain specified tasks, not emanations of the shareholders’ selfhood. James Madison and the other fathers of the First Amendment would have found it similarly absurd to say that corporations have a right to religious freedom.
I do not agree that "logic" takes us where Noah thinks it does. I would put the matter differently: Do constitutional protections for the freedom of speech and the freedom of religion place any limits on what governments may do to corporate entities, associations, communities, and groups? And, it seems to me, the answer to this question is clearly "yes." Identifying those limits and enforcing them in particular cases are important and challenging tasks, but the claim that "logic" dictates a rule that regulations of corporations get a First Amendment "free pass" is not persuasive.
Noah also suggests the following solution to the HHS-mandate debate:
Here the optimal solution is for the Obama administration to acknowledge that the ACA requires all insurers to provide contraceptives as part of the price of doing business. Why would this work? Because those employers who won’t pay for contraception on religious grounds can preserve their consciences by knowing that they really aren’t paying for it. Instead, the state is making their insurance companies do so, at no cost to them. This should be morally satisfactory -- and neither the law nor the Constitution requires more.
I agree that "the Constitution" probably requires no more than this, though it would seem to rule out "self insurance" by religious entities that object to the mandated coverage.
To all those who care about Catholic education and expanding opportunities for underprivileged children (as we all should), Fr. Tim Scully, C.S.C., of the University of Notre Dame is a hero. Check out this interview with him, conducted by Kathryn Lopez, called "Educating the Least of These." A bit (that might be relevant to law-teachers, too, as the new semester starts!):
ACE’s spirituality is based first and foremost on the person of Christ the Teacher — we are constantly inviting our teachers to come to a deeper understanding of Christ in his most common day-to-day identity, which was a teacher. We invite our ACE teachers to reflect, and try to model their own service, on such characteristics of Jesus’ teaching as: his passion, his integrity (there was no gap between what he taught and how he lived), the way he loved and gave his life for those he was teaching, his perseverance through the inevitable difficulties and disappointments of teaching, his willingness to reach into the daily lives of those whom he taught (like in the parables) and help them see the deeper meanings of life, and ultimately to recognize God at work in their daily lives. . . .
In my view, Prof. Perry Dane (Rutgers-Camden) is one of the more thoughtful and intriguing law-and-religion scholars in the country. Here's a new piece of his, called "Christmas":
This paper, which is still in a very early form, looks again at the recurring problem of Christmas and the Constitution. Conventional Establishment Clause analysis of Christmas is built on three propositions: First, Christmas is in a sense two holidays: a Christian celebration of the birth of Jesus, and a secular winter holiday. Creches and the like are symbols of the religious Christmas, while trees and Santa Claus are among the trappings of the secular Christmas. Second, government participation in celebrating the secular Christmas is unproblematic. Third, celebrating the religious side of Christmas does risk violating the Constitution, but embedding the religious element in a secular context can mitigate the infirmity.
Much of the criticism of current doctrine has honed in on the third of these propositions. I want to focus, however, on the premise of a "secular" Christmas on which the first two propositions of the doctrine are built. My argument is that the notion of a secular Christmas, and the assertion that the tree and Santa and so on are secular symbols of that secular Christmas, are both deeply problematic. More specifically, I argue that Santa and the like play a complex, rich, and tension-filled role in the "religious economy" of Christmas, and that we cannot begin to tackle the constitutional problem of Christmas until we unravel that complexity. Santa and the tree, even if they carry little or no propositional content, are "religious capital" - "cultural accessories" to the religious meaning of Christmas. And, paradoxically, they can also, under certain circumstances, take on downright anti-religious meaning. When the government adopts these objects and symbols and practices for itself, the effect is religiously and constitutionally complex. The solution to these problems, however, is itself neither obvious nor straightforward.
MOJ readers are probably familiar with the conversations/arguments/debates swirling around over the extent to which "the Enlightenment", or "liberalism", or "rights talk", or "individualism", or "libertarianism" (a) is or is not responsible for what ails us and (b) is or is not compatible with Catholic social teaching and moral anthropology, correctly understood. For a taste, check out Patrick Deneen's "Unsustainable liberalism" (here) and Robert Miller's "Eudaimonia in America" (here). (My own views, for what it's worth, are closer to Miller's on this one.) Here's another contribution that caught my eye: Jason Jones and John Zmirak's "The Enlightenment is not Enough" (at Aleteia). And no, I'm not endorsing everything in the piece. It does seem to me, though, that criticisms of "liberalism" need to concede its strengths and accomplishments just as defenders of it need to similarly concede its failings and weaknesses.
The question whether what our friend Michael Perry calls the "morality of human rights" requires a theistic foundation -- which is, of course, an entirely different question from the one whether one needs to be a theist to embrace or act in accord with that morality (one does not) -- has often been discussed here at Mirror of Justice. Michael Perry has written about the issue, of course, as have others, including Nicholas Wolterstorff. In my review of the latter's relatively recent book, Justice, I wrote:
What makes it the case that a human being is the kind of thing that can be wronged in the way that justice forbids? It might be tempting to join thinkers like Richard Rorty in shrugging off the “outmoded” task of “rights foundationalism” and rely instead for the preservation of our “moral subculture of rights” on “sad and sentimental stories” that evoke “sympathy for the feelings” of others.
For Wolterstorff, this will not do; an “account of human dignity adequate for grounding rights” is required. He proposes, however, that no secular account is possible. A theistic account, however, is available: In a nutshell, the “relational property of being loved by God”—a property that has nothing to do with human capacities (which are not, after all, shared or distributed equally)—is what gives a human being great worth.
The conclusion and the heart of the argument will—as my colleague Paul Weithman has suggested—be familiar to all parents and children who have read The Velveteen Rabbit: “Natural human rights,” he concludes, “inhere in the worth bestowed on human beings by that love” and “are what respect for that worth requires.”
Finally, the “unsettling question”: If belief in what is required to ground human rights is destined to wane, then what? Our “moral subculture of rights” might well be pervasive, but it is also “frail.” If “secularization” is the expected course of things, then it is not clear how confident we can be in the future for justice. “This is,” Wolterstorff admits, a “melancholy conclusion, . . . if one believes the secularization thesis. . . . I do not believe the thesis.”
In this recent piece, "The Confidence of Jerry Coyne", Ross Douthat addresses the question, too. Here is a taste:
The point that critics make against eliminative-materialism, which Coyne seems not to grasp, is that it makes a kind of hard-and-fast moral realism logically impossible — because if the only real thing is matter in motion, and the only legitimate method of discernment the scientific method, you’ll never get to an absolute “thou shalt not murder” (or “thou shalt risk your life on behalf of your Jewish neighbor”) now matter how cleverly you think and argue. This is not necessarily a theistic objection — it’s one of the issues raised in Thomas Nagel’s controversy-generating book, which explicitly keeps religious ideas at arm’s length — and for that matter there are forms of theism that need not imply moral realism, and Euthyphro-style objections to the union of the two. But I don’t think those of us who still embrace the traditional Western idea of God are crazy to suggest that our cosmology has at least a surface compatibility with moral realism that the materialist conception of the universe’s (nonexistent) purposes seems to lack.
So if you’re going to defend both materialism and modern rights-based liberalism, you have to actually address this point head-on.
This new book, "The Great Debate: Edmund Burke, Thomas Paine, and the Birth of Right and Left," by EPPC's Yuval Levin, looks very interesting (and timely). Ramesh Ponnuru reviews it here. A bit:
Yet Levin also notes that conservatives have often sounded much like Paine themselves. President Ronald Reagan explicitly quoted Paine’s wildly unconservative line that “we have it in our power to begin the world anew.” Levin suggests that the practice of conservatism has been more Burkean than its arguments. The arguments have, however, weakened the practice. To use an example Levin does not, President George W. Bush’s confidence that Iraq was fertile soil for republican government owed more to Paine than to Burke. More generally, conservatives have sometimes been attracted to the apparent simplicity of principle rather than paying attention to the details of policy. . . .
Prof. Kevin Lee -- whom MOJ readers will certainly remember from his contributions to this blog -- is now blogging here, at "Occasional Writing." His most recent post is on the Windsor case and related matters. Check it out!
My friend and former student, Carissa Mulder, has a nice piece up at Public Discourse, "Sex, Drugs, and Religious Liberty," which surfaces a number of the "big picture" issues that sit just beneath our debates about the HHS mandate and so on. A bit:
Why . . . does it seem that a growing number of Americans view religious liberty with suspicion, if not outright hostility? The problem is that many Americans are offended by the existence of an opposing view. The fact that someone, somewhere, dares to voice disapproval of their sexual behavior is, it now seems, offensive in and of itself. Studied non-judgmentalism is one of the hallmarks of contemporary American culture, with departures viewed as gauche at least or, more commonly, as an illegitimate attack on the sacrosanct individual. If you doubt this, please try telling a group of largely secular thirty-somethings that you believe cohabitation is wrong and see what response you receive. . . .
Apparently, the organization formerly known as Protestants and Other Americans United for Separation of Church and State has filed a motion seeking to intervene in "Notre Dame Lawsuit Challenging Women's Access to Birth Control." Of course, no such lawsuit exists. The lawsuit to which the organization founded by the paranoid bigot, Paul Blanshard, refers is Notre Dame's lawsuit invoking the protections of the Religious Freedom Restoration Act and seeking an exemption from a requirement that it (or, the TPA administering its insurance plan) provide employees and students with coverage for non-medically-indicated contraception and sterilization. But, in any event . . .
It is entirely understandable that AU would try to intervene in Notre Dame's case, if only because it makes for good direct-mail content and it will appeal to AU's neo-Blanshardian donors and supporters. That said: I understand (though I do not agree with) the claim that, because Notre Dame is a large employer in the area, its right to refuse to provide coverage for contraceptives (in cases where a physician has not indicated that the contraceptives are medically indicated) to employees who do not embrace the Catholic Church’s teachings on sexual morality and abortion is limited. That is, Notre Dame’s role and place in the market limits its right to say to employees “this is who we are, and if you want to work for us, you should expect that who we are will be relevant to the terms of our arrangement with you.”
With respect to students, though, it is harder for me to see why Notre Dame should not be able to say to prospective students (as Notre Dame does), “This is who we are. If you come here – and you are welcome to, but you don’t have to – you should know that our character, mission, aspirations, and values will shape the terms of our arrangement with you.” Is it the view of AU, or of others, that the Establishment Clause (or anything else) prevents the government from exempting a Catholic (or other mission-oriented) educational institution from an otherwise general rule in order to allow the institution to say (something like) this to students and the broader world – again, assuming that students who get into Notre Dame (a) have plenty of options and (b) know full well that Notre Dame aspires to a meaningfully Catholic character?
