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.

Wednesday, September 9, 2009

Villanova conference on Catholic Legal Education

This should be a fun and thought-provoking event:

There are 29 law schools in Catholic universities in the United States, and the past 10 years have witnessed a renaissance in Catholic legal education. New law schools have opened with an express commitment to Catholic identity, and established law schools at Catholic universities have undertaken to enhance their institutional mission. Catholic social teaching offers extraordinary opportunities for the integration of Catholic perspectives into legal education, as principles in Catholic social teaching such as solidarity, subsidiarity, the option for the poor, and economic justice provide distinctive bases for both critique and reconstruction of existing legal structures. The 2009 annual conference sponsored by Villanova University School of Law and the Journal of Catholic Social Thought will explore a range of topics at the intersection of Catholic social thought and legal education and how Catholic social thought can produce a vibrantly Catholic approach to law and legal education. The conference will begin a dialogue about the past, present, and future of Catholic legal education in the United States within the framework of Catholic social thought.

China's "enlightened" leaders?

This Tom Friedman piece is just creepy.  I suppose China's "enlightened" leaders make the trains run on time, too?  (Yes, yes, Friedman is correct to note that democracy complicates the efforts of those who desire dramatic policy shifts.  But still . . ..).

Robert George on Kant and Human Dignity

Robby George writes:

Rob Vischer asks:   What does the Christian belief in human dignity owe to Kant?

One way of approaching the question is to consider Kant’s second formulation of the categorical imperative, namely:  “treat humanity, whether in the person of oneself or another, always as an end, and never as a means only.”   This is an elegant and accurate (so far as it goes) way of stating what respect for human dignity requires, at least as Christians understand the matter.

Note, firstly, that as a principle of rectitude in choosing and acting, it is not exclusively concerned with the impact of one’s conduct on others.  To be sure, it demands that one behave justly towards others; but it recognizes that moral obligations obtain even where the rights and interests of others are not at stake:   treat humanity, whether in the person of oneself or another, always as an end  . . . “   In other words, it is possible for one to behave immorally by treating oneself as a means—an instrument, a thing—and one must, as a matter of moral obligation, refrain from doing that.  This has implications in many areas, including those pertaining to self-killing and to sexuality.   Although Kant is often invoked by contemporary liberal writers who are interested in defending putative rights to suicide and voluntary euthanasia, fornication, sodomy, and so forth, Kant himself was a “conservative” on these issues, and his conservatism is not to be accounted for (as some have rather lamely suggested) by reference to his stern Prussian Protestant upbringing.  Kant’s moral conservatism (including his view that conduct can be immoral—contrary to human dignity—even where it has no bearing on anyone other than adult participants who are consenting to it) flowed from his Kantian principles.   (See John Finnis, “Legal Enforcement of 'Duties to Oneself':   Kant v. Neo-. Kantians,” Columbia Law Review, Volume 87, 1987, pp. 433–456.)

Note secondly that Kant sees humanity itself as possessing fundamental worth—dignity.  One’s dignity as a human being is not only profound, but also inherent.  One has it by virtue of one’s humanity.  And all members of the human family have it.  None, then, may be reduced (or may licitly reduce themselves) to the status of instruments or objects.  If we wish to put the matter in the language of rights, it is fully in line with Kantian ethics to say that each and every member of the human family is, as such, a possessor of human rights.  Human rights are what we see when we consider the dignity of the human being with our focus on the way in which human beings are entitled to be treated.

In all of this, Kant’s moral philosophy is more closely in line with traditional Christian morality than with secular liberal (or even contemporary liberal Christian) ethics.  Yet, from a traditional Christian point of view, and especially a Catholic one, there is nevertheless something deeply inadequate about what Kant gives us.   Although the gap between traditional Christian morality and Kantianism is not nearly as wide or deep as the chasm separating traditional Christian thought from utilitarianism and, indeed, all forms of consequentialism in ethics (including the “proportionalism” of liberal Catholic moral theologians such as the late Richard McCormick, S.J.), it is true that in one crucial respect traditional Christian ethics (especially of the Catholic sort) is like utilitarianism and other forms of consequentialism and unlike Kantianism. 

Like consequentialists, and unlike Kantians, traditional Christian moral philosophers and theologians take as the starting points of ethical reflection the basic aspects of human well-being and fulfillment which, considered integrally, constitute human flourishing (eudaimonia).  At the foundation of moral reasoning and judgment is a concern with the human good (which means a concern for human goods—since the good of human beings is variegated); and ethics is most definitely not an enterprise designed to identify principles of right conduct detached from a consideration of what makes for, and detracts from, the various dimensions of human well-being and fulfillment.  For traditional Christian ethics, the idea of a purely “deontological” ethical theory is nonsense.  Ethics is about both the right and the good, and the two are intimately—indeed, intrinsically—connected.  Norms of morality are principles of right action that are entailed by the directiveness of all of the various aspects of human well-being—i.e., the human good considered in its wholeness (integrally).  So principles of right action (“the right”) are shaped by principles of human fulfillment (“the good”).  The content of ethics, considered as principles of rectitude in willing—moral principles—and the habits and traits of character disposing us to choose in conformity with those principles—virtues— is what it is, because the human good is what it is; and the human good is what it is, because human beings are constituted in a certain way—they have a certain nature.  (For example, friendship is intrinsically fulfilling of human persons, and not a merely instrumental good, because human beings are by nature social creatures.  Of course, this does not mean that as an epistemological matter our knowledge of human nature is methodologically antecedent to our knowledge of human fulfillment.  Indeed, in my opinion the reverse is true.)

A consideration of the goods of human nature is necessary if we are to specify the Kantian categorical imperative by making it possible to judge what it means to treat a person as an end—what it means to respect human dignity.  To respect a person, to honor his dignity, is to respect—esteem, favor, foster, orient our own wills positively towards—his well being, his flourishing, in a word, his good.  Basic human goods just are the fundamental and irreducible aspects of the well-being and fulfillment of the person in whom they are instantiated.   To honor a person’s dignity is to respect and favor his integral good—his good in all its dimensions.  To respect human dignity as such, is to will in a way that is compatible with the ideal of integral human fulfillment—the good of all persons and the communities to which they belong.

So every faithful Christian—certainly every Catholic—will want to cheer when Kant says “treat humanity, whether in the person of oneself or another, always as an end, and never as a means only.”  It is a true Christian principle (albeit, one that can rationally be affirmed, as a matter of natural law, even by those who do not share the Christian or Jewish faith).  And it makes a contribution to the Christian understanding of human dignity (at least insofar as it succinctly expresses what Christians can affirm as a kind of master ethical principle).  But it is a formal principle, so it needs specification if it is to be meaningful as a principle of action.  And its specification requires that we advert to that which Kant insistently declined to advert to, namely, the content of the human good.  So, in my opinion, it would be better to formulate the principle in such a way as to explicitly bring into focus to the human good.  Although it requires trading away elegance for precision, I would join Germain Grisez in formulating the principle in something like the following terms:   In all of one’s choosing and willing, one should choose and will those and only those options that can be willed compatibly with a will towards integral human fulfillment.   If one respects the specifications of that principle, then one will certainly be treating humanity, whether in the person of oneself or another, always as an end.  One will be honoring the profound, inherent, and equal dignity of every member of the human family.

More on our disappointing health-care "debate"

Like Susan (though perhaps for some different reasons), I am "depressed about the prospects of passing meaningful health care reform."  This depression was greatly enhanced (exacerbated?) by reading the cover story in the September issue of The Atlantic.  (If I remember correctly, another MOJ-er called our attention to this piece earlier.)  It strikes me that (almost) the entire "debate" is taking place in an arena confined by mistaken premises and is, therefore, overlooking (almost) entirely a number of pressing -- indeed, crucial -- challenges.  A taste:

I’m a Democrat, and have long been concerned about America’s lack of a health safety net. But based on my own work experience, I also believe that unless we fix the problems at the foundation of our health system—largely problems of incentives—our reforms won’t do much good, and may do harm. To achieve maximum coverage at acceptable cost with acceptable quality, health care will need to become subject to the same forces that have boosted efficiency and value throughout the economy. We will need to reduce, rather than expand, the role of insurance; focus the government’s role exclusively on things that only government can do (protect the poor, cover us against true catastrophe, enforce safety standards, and ensure provider competition); overcome our addiction to Ponzi-scheme financing, hidden subsidies, manipulated prices, and undisclosed results; and rely more on ourselves, the consumers, as the ultimate guarantors of good service, reasonable prices, and sensible trade-offs between health-care spending and spending on all the other good things money can buy.

These ideas stand well outside the emerging political consensus about reform. So before exploring alternative policies, let’s reexamine our basic assumptions about health care—what it actually is, how it’s financed, its accountability to patients, and finally its relationship to the eternal laws of supply and demand.

But, read the piece for yourself.  I came away, again, depressed.  The problem is huge and -- whether or not President Obama's, or Rep. Pelosi's, or someone else's "reform" bill passes -- it appears almost certain that we are going to continue spending a lot more than we should to get less than we should.

One thing that seems clear (to me) after reading the piece is that it is a mistake to think or contend that the Church's recognition that "health" is a basic human good and that political communities have an obligation to help secure this good translates neatly into a "Catholic" mandate for this or that health-insurance proposal.  Sure, we can find clear support for general principles -- we can say, for example, that the "keep all government out of health care" claim is silly -- and for a few clear markers -- for example, that the political community should not fund the provision of elective abortions.  But what, it seems to me, we cannot say is that the Church's teaching requires this or that tweaking of our (if the article is correct) deeply misguided insurance-based system. 

Sigh.

Thursday, September 3, 2009

The Post's suggested reading for the President on educational choice

I am a few days late on this, but I hope readers had a chance to see this op-ed, in the Washington Post, regarding the D.C. school-choice program, which the new Congress has been attacking:

PRESIDENT OBAMA reportedly has a hefty reading list while vacationing this week, but we would like to offer two additions, both hot off the presses. One is an article by the education expert who studied the D.C. voucher program; the second is a study on school safety in the city's public and private schools. Read together, they might cause the president to rethink his administration's wrong-headed decision to shut down the voucher program to new students. . . . 

As we've said before, vouchers aren't the answer to Washington's school troubles; we enthusiastically support public school reform and quality charter schools, too. But vouchers are an answer for some children whose options otherwise are bleak. In Washington, they also are part of a carefully designed social-science experiment that may provide useful evidence for all schools on helping low-income children learn. Why would a Democratic administration and Congress want to cut such an experiment short?

Why, in particular, would an administration that some say is, or at least aspires to be, a promoter of the vision shared by the Catholic Social Tradition attack an experiment that enjoys overwhelming support from that Tradition?

Taxing churches

Gerald Russello is concerned (here) that "to tax churches is to muzzle religion."  (I explored this and related concerns a few years ago in this law-review article.)  A taste:

[T]he existence of churches and their ability to freely practice their faith — including calling politicians to live that faith — exist apart from, and prior to, state power. If taxation is one way for the state to limit and restrict churches to fulfill their mission, and so is limited, the threat of removing tax-exempt status can be used to the same effect. In any event, why can’t churches promote political positions? Involvement of religious organizations with public causes — such as those against slavery or in support of the temperance movement — are a firm part of American history. The evolution of the IRS rules has become another example of a secular culture hostile to the religious traditions of the nation.

For a detailed study of the IRS rules regarding political activity by charitable organizations, and an analysis of these rules in light of the First Amendment and religious-liberty-protecting statutes, see this paper by my colleague, Lloyd Mayer.

"A House Divided"

Jody Bottum has a must-read post over at First Things, about a -- to me -- very disturbing family-law decision in New Hampshire.  (Eugene Volokh comments on the same case here.)  A "10-year-old daughter lives during the week with her mother, Ms. Voydatch, who homeschools her. The father, Mr. Kurowski, objected to the homeschooling, and the court adopted the father’s proposal that the girl be sent to public school.”  And the court said, among other things, that: 

The Guardian ad Litem . . . concluded that the daughter would be best served by exposure to different points of view at a time in her life when she must begin to critically evaluate multiple systems of belief and behavior and cooperation in order to select, as a young adult, which of those systems will best suit her own needs. . . .

[T]he Court is guided by the premise that education is by its nature an exploration and examination of new things, and by the premise that a child requires academic, social, cultural, and physical interaction with a variety of experiences, people, concepts, and surroundings in order to grow to an adult who can make intelligent decisions about how to achieve a productive and satisfying life.

The parties do not debate the relative academic merits of home schooling and public school: it is clear that the home schooling Ms. Voydatch has provided has more than kept up with the academic requirements of the [local] public school system. Instead, the debate centers on whether enrollment in public school will provide [the daughter] with an increased opportunity for group learning, group interaction, social problem solving, and exposure to a variety of points of view. . . . [T]he Court concludes that it would be in [the daughter’s] best interests to attend public school. . . .

As Prof. Volokh observes, "the decision [is] constitutionally troublesome, whether implemented in broken families or in intact families. It may well be in the child's best interests to be exposed to more views in public school — or it may well be in the child's best interests to avoid the views that public school will expose her to. Those are not judgments that courts should generally make given the First Amendment."

One suspects that this particular court would not conclude, in a similar case, that a child's best interests would be served by removing her from the public school, and sending her to a Catholic school, given that the Catholic school provides exposure to new points of view and a fuller account of life and living.

Wednesday, September 2, 2009

A long newsmagazine story about Ave Maria School of Law

Is here, in the Washington Monthly.  What can one say?  It's all very sad.

Winters on SSM in DC

Over at the America blog, Michael Sean Winters has a useful post up regarding the same-sex-marriage debate in Washington, D.C., and on Archbishop Wuerl's recent statements regarding the Church's teaching, and the traditional understanding, of marriage.  Particularly important, I think, is Winters's response to the canard that such statements, in the context of such a debate, threaten (or, indeed, have anything to do with) the "separation of church and state":

[T]he opposition has begun to throw out straw men and other obfuscations. "I respect the bishop for his view…but we live in a representative democracy where there is a separation of church and state. We do not live in a theocracy," councilman David Catania told the Washington Post. True enough, but no one suggested that we do transform our constitutional arrangements in a theocratic direction. Indeed, Catania’s comments are carefully chosen – and especially galling - because he and his allies are trying to prevent a referendum on the issue. Ours is a representative democracy, and Catania is a representative, but he should not so scorn the demos, the people, as to deny us a vote on the definition of an institution so central to our lives and society.

Winters's point here is consistent, I think, with the claim (which I *think* all of us here at MOJ would endorse) that there are "moral limits to morals legislation" (as our colleague Fr. Greg Kalscheur has written) and that Christians will often have good (and Christian) reasons for refusing to "legislate [Christian] morality" (as Michael Perry has written). 

Tuesday, September 1, 2009

Prof. Stone (again) on "our six Catholic justices"

Prof. Geoffrey Stone returns, here, to the phenomenon of "our . . . Catholic justices."  A few years ago, after the Supreme Court rejected a constitutional challenge to the federal ban on partial-birth abortions, Prof. Stone had caused some controversy with his assertion that the justices in the majority -- all Catholic -- had "failed to respect the fundamental difference between religious belief and morality", a distinction that "[t]o be sure, . . can be an elusive distinction, but in a society that values the separation of church and state, . . . is fundamental."

I responded, here (see also this), and disagreed.  I thought, and think, that the majority was both reasonable and correct in concluding that the Constitution permits Congress to regulate abortion in the way that it did, and that their decision did not involve the imposition of specifically Catholic "religious belief."

In his latest piece on the subject, Prof. Stone's presentation is (I think) less (to use his word) "inflammatory", and more measured, than was his earlier one.  He proposes a number of arguments, grounded in data about justices' voting in abortion-related cases, intended to support, if not to "prove[]", his initial assertion that the Catholic justices' religion best explains their vote to uphold Congress's enactment. 

I'll leave it to readers, for the most part, to assess these arguments, but would suggest that Prof. Stone's claims seem at least as consistent with the hypothesis that "non-Catholic justices are more likely than Catholic justices, in abortion-related cases, to give in to the temptation to impose their policy preferences and disable politically accountable actors through implausible readings of the Constitution" as with the hypothesis that "Catholic justices, in abortion cases, tend to rely on specifically Catholic beliefs and morality rather than on the Constitution's meaning."  That is, the observation that Catholic justices tend to vote against the constitutionalization or expansion of abortion rights should raise not only the (in Prof. Stone's words) "awkward" question whether they are imposing their religious beliefs, but also the question, "why are the non-Catholic justices more likely to get it wrong, when it comes to abortion?"

UPDATE:  Geof Stone and I have had some conversation about our respective posts, and he kindly agreed to let me share the substance of this conversation with MOJ.  See below the jump . . .

Continue reading