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.

Saturday, May 2, 2009

More from the CUA conference on "religious mission" and law schools

As Patrick and Amy have already mentioned, we had the pleasure of participating in a panel discussion at Catholic University last week on the subject of "Realizing Religious Mission in Legal Education."  Their remarks were, no surprise, both inspiring and insightful.  I was speaking from notes, but tried to get across the following:  First, the "religious mission" of a law school and a dedication to that mission's realization should never be seen as an excuse for failing to display (in Judge Noonan's words) the "qualities common to all excellent schools," including rigorous standards for scholarship.

Second, I emphasized three ideas:  novelty, opportunity, and community.  The point of "novelty" is to underscore the fact that the "Catholic law school project" is not an exercise in reaction, nostalgia, or retrieval.  The kind of enterprise we are talking about is new.  "Opportunity" suggests that an emphasis on, and aspiration to, Catholic character presents a way to capture the benefits of "institutional pluralism".  A distinctive law school is more likely to be interesting and, therefore, attractive.  Finally, "community.'  A Catholic law school is a community of scholars, and that community will include people who are not doing "Catholic stuff" in their scholarship.  A danger, it seems to me, in the mission-project is that the "mission" becomes the property of "professional Catholics" or church-state specialists.

Tuesday, April 28, 2009

Philpott on reconciliation

Great stuff, at America, from my friend, political scientist Dan Philpott. Check it out.

"Torture: What it is, and Why it is wrong"

Philosopher Chris Tollefsen explains, here, at Public Discourse.  (ed.:  But wait, there must be some mistake.  Public Discourse is a front for right-wing Catholic torture apologists, isn't it?  We all know that Robby George and that crew care only about fetuses, and not about detainees, right?  RG:  ed, stop reading Andrew Sullivan.)  A taste:

It is important to be clear, as a moral matter, on what boundaries should be accepted in interrogation of human beings. These sorts of boundaries, regardless of whether they are called torture, or “cruel, inhuman and degrading” treatment, are the ones that matter for our most basic assessment of how agents of the United States Government should comport themselves when questioning terror suspects. The discussion should not, that is to say, begin with questions about how the nature of the terrorists’ crimes, or their status as illegal enemy combatants, affects what may be done. For, if there are forms of treatment forbidden as such for all human beings, then such forms of treatment will be ruled out for terror suspects just as for prisoners of war, and common criminals.

For another, different, but worth-reading take on the issue, by the always worth-reading Stuart Taylor, go here.

Thursday, April 23, 2009

Colorado death-penalty vote

The Colorado House of Representatives has voted -- narrowly -- to repeal the death penalty.  According to this story, the person who cast the deciding vote did so on the basis of "moral appeals he had heard, including from Archbishop Charles Chaput, the senior Roman Catholic clergyman in Colorado."  (HT:  American Papist).

But wait, this can't be correct . . . Arbp. Charles Chaput is a narrow-minded Republican hack, right?


Some new blogs at First Things

"Icons and PomoCons".  Looks interesting!

Wednesday, April 22, 2009

More from Chris Eberle, responding to Rob, re: punishment, etc.

This from Chris Eberle:

Rob expresses the concern that the argument I articulated in favor of waterboarding KSM blurs the line -- unacceptably -- between interrogation and punishment.  But I'm not sure about that.  I don't think that waterboarding KSM is permissible because he 'deserves' to be punished.  Retribution plays no role in the argument I articulated.  Rather, I think that KSM's culpability helps us to determine how to distribute inevitable harms.  That is, given the plan KSM culpably set in motion, some innocents are going to die.  But we have available to us an unexpected means of redirecting the harm -- not to its intended, innocent targets, but to KSM.  Given either that innocents in LA will die or that KSM will be waterboarded, KSM's having culpably initiated a plan that will otherwise result in the death of those innocents permits us to take the second option.  His culpability determines who will be harmed, given that *someone* will be harmed. 

Just to make clear that this argument presupposes no claim about KSM deserving to be punished, note that the argument I articulated permits KSM's waterboarding only if that would actually help to thwart his plan to kill innocents, and would be impermissible if waterboarding him had no such consequence. (I assume that, were he to 'deserve' to be waterboarded, we would be obliged, or at least permitted, to waterboard him even if doing so prevented no plan of his.  He would be getting what he deserved.)

Eberle on torture, etc., in response to Rob

MOJ-friend and accomplished philosopher Chris Eberle sends in this:

Rob Vischer asked the following question: 

In response to the release of documents describing our government's interrogation practices, former Vice-President Cheney has asked the government to release documents that "lay out what we learned through the interrogation process and what the consequences were for the country."  Why exactly should the fruits of torture be relevant to our evaluation of torture's acceptability?  Would Cheney want to know the medical fruits of embryonic stem cell research or the (purported) sociological fruits of abortion on demand before condeming those practices? 

It seems to me that there is a sensible answer to this question.  The best argument in favor of the waterboarding of Khalid Sheikh Muhammad is not a consequentialist argument, as perhaps Vice President Cheney has suggested, but one that appeals to plausible claims about personal liability.  The argument is, roughly, as follows.  Suppose, as I think is in fact the case, that the US had compelling reason to believe that KSM played a crucial role in planning that attacks on 9/11 and that KSM was involved in the planning of future but then unknown attacks.  Given that the US government had reason to believe that KSM culpably initiated some realistic threat to innocents, and given that the US could prevent that serious threat by waterboarding KSM, the US government permissibly waterboarded KSM.  That is, KSM’s culpable role in initiating a series of events that would eventually result in the death of innocent persons is what made it the case that the

US

government permissibly coerced KSM into revealing information that prevented the planned attacks.  (This despite the fact that KSM no longer played any role at all in carrying out the planned attack – he was, at the time of his being waterboarded, not capable of carrying out the attack himself, but only of revealing information about those whom he had sent to carry out the attacks.) 

 

(You can think of many wild analogues here – Jack poisons Perkin who will much later suffer then die unless we find the antidote which Jack has hidden and will not reveal unless… -- but we don’t need any fanciful thought experiments, since we have KSM himself to reflect on!)

 

You might, or you might not, regard this argument as sound.  Fine.  But if you do, as Cheney and others might, then any evidence that vindicates the US government’s claim that KSM knew about, or played some role in initiating, the planned Los Angeles attacks is relevant to the moral judgment we should render regarding the permissibility of the US government’s waterboarding KSM.  In other words, facts about KSM’s knowledge of some impending threat – facts initially gained by way of waterboarding KSM -- shed some light on the moral permissibility of the government’s treatment of KSM.

Fact and Fiction about the Framers and Faith

Check out this essay, "Blushing Our Way Past Historical Fact and Fiction," by Seth Tillman.  Abstract:

Legal academics and the public are fascinated by both constitutional text and the processes by which it is interpreted. The precise role for legal academics in the interpretation of such charters is controverted. Doctrine and case law as established by the courts remain the core of academic legal discourse. Case law is, after all, the object about which doctrine is based, built, and extended. But the interpretation of constitutional text through case law comes with costs -- it seems to lack democratic legitimacy, and where unconnected to text and history, it has a tendency to fence out (even the well-educated) the public. On the other hand, when legal academics shift to text and history, their work gains populist credentials, but, at that point, the legal academic risks his privileged position. For the legal academic has no monopoly, or even highly developed expertise, with regard to textual exegesis or the best use of historical materials. In light of those attendant risks, I want to praise Professor Geoffrey R. Stone for taking on the role of exegete and historian. But that said, I find some of his specific textual and historical claims troubling. I respond to his textual and historical claims in detail below. This paper, however, has no grand normative claim of its own; it is merely an effort on my part to correct the record, and thereby to further the object pursued first by Professor Stone: “to know the truth about the Framers, about what they believed, and about what they aspired to when they created this nation.”

What follows is substantive discussion of the Attestation Clause, the Oaths and Affirmations Clause, the Sundays Excepted Clause, the Religious Test Clause, and a crtique of Stone's use of historical materials, particularly his claim in regard to a book burning at Harvard circa 1789.

A wretched decision by the Ninth Circuit

A panel of the United States Court of Appeals for the Ninth Circuit has mangled the landmark ruling in Zelman and concluded that Arizona's (wise and wonderful) tax-credit program, in practice, could violate the Establishment Clause.  Read it and weep.

Kmiec's latest

A religious-left organization called "Faith in Public Life" has released a series of quick-bites from "evangelical and Catholic leaders" who are said to "welcome" the Administration's new stem-cell-research guidelines.  One of the "Catholic leaders" quoted is Doug Kmiec, who continues to surprise -- to surprise me, anyway -- with his enthusiastic willingness to endorse policies and propositions from which, not too long ago, he would have recoiled.  According to Kmiec:

"The Obama administration has announced informed consent rules that are far more strict - and retroactive - than what had been proposed by President Bush. In brief, if researchers do not follow the new informed consent rules, no funding. This may trigger some consternation among medical researchers, but it is a very positive sign that President Obama has been listening - as he promised - to the heightened claims of conscience posed by Catholics in the modern medical environment. The President's strong motivation to assist in the treatment of devastating illnesses often associated with life's end is only ennobled by his willingness to be more ethically sensitive to the earliest moments of life."

Two thoughts:  First, while it is certainly preferable that there be strong informed-consent rules than that there not be, the fact that parents of the to-be-destroyed-for-research embryos consent is irrelevant (isn't it?) to what for pro-lifers (like, I would have thought, Kmiec) the real question, i.e., whether it is moral to destroy-for-research such (unconsenting, I assume!) embryos.  

Second, the "more strict than Bush" claim is extremely misleading.  A regime that will involve massive new funding for the actual destruction-in-research of human embryos is hardly more "strict" (in a way that pro-lifers will care about, anyway) than one in which federal funding is permitted only using a limited set of previously-created stem-cell "lines."