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.

Monday, October 8, 2007

Wills, abortion, and "religious issue[s]"

Michael's recent post, regarding Martin Marty's column on Garry Wills' new book, Head and Heart:  American Christianities, touches on the same claim mentioned in this Newsweek story ("A New Ambivalence:  Long a black-and-white issue, abortion is now seen more as an argument to be fostered, not settled.")  Put aside the cringe-worthy and contentless title.  The piece includes this:

Religious thinkers like Garry Wills, a Roman Catholic, have begun to say that abortion should not be a religious issue. In his new book, "Head and Heart: American Christianities," Wills argues that even the popes have said that abortion is a matter of natural law, governed by reason and science, not religion. "There is no theological basis for either defending or condemning abortion," he says.

I do not know what the Newsweek writer is trying to say here.  Sure, "abortion is . . . governed by reason and science."  What is supposed to follow from this observation?  From the tone of the piece, the suggestion seems to be that because abortion is not "governed" by religion, but instead by "natural law", it follows that the "centrist approach" (i.e., tolerating the current abortion-on-demand regime) is the one to choose.  But, I would think that Pope Benedict XVI, for example, would be happy to concede that "abortion" is governed by "natural law," "reason", and "science", and would observe that abortion's immorality is not something knowable only via revelation (apparently, to be "governed" by religion is to be beyond "reason").  What's the point here?

As for Wills . . .   Obviously, he's a gifted writer, etc. etc.  But it's hard to take very seriously the statement that "there is no theological basis for either defending or condemning abortion", unless Wills means to say (and I don't think he does) that "theology", strictly speaking, is not necessary to reach the conclusion that abortion should be condemned.  Of course there is a "theological basis" for condemning abortion ("Believe in infant baptism?  Hell, I've seen it done!").  Wills (apparently) just does not buy the arguments.  (Does he really think it is a strong argument to say that abortion is not treated in the Sermon on the Mount?)  As for his (very, very) tired "gotcha" argument (i.e., "pro-lifers are hypocrites, because they don't treat women who get abortions as murderers, and don't have funerals for hair cuttings") . . . no, they aren't.  It is not unfair, I think, to expect better from Wills.

By the way, Alan Wolfe's review of Wills' book is here.

Wednesday, October 3, 2007

A missing link in Novak's essay

As Rob has already told us, Michael Novak (for whom I have great admiration) has an essay up at National Review online, in which he is critical of the Mirror of Justice joint statement on the situation at Ave Maria School of Law.  In that essay, though, Mr. Novak does not link to the Mirror of Justice statement he is criticizing.  Instead, he links to a statement -- which was re-published at MOJ -- by members of the Ave Maria faculty.  I have asked the good folks at the National Review website to add a link to the MOJ statement.

"Faith in the Rule of Law"

Here's a paper -- "Faith in the Rule of Law", by Marc Degirolami, that should be of interest to many MOJ readers (especially to those of us in the law's Quandary fan club):

This is an essay on Professor Brian Tamanaha's book, Law as a Means to an End: Threat to the Rule of Law (Cambridge Univ. Press 2006), and what Tamanaha describes as the danger that legal instrumentalism poses for the rule of law. It claims that though Tamanaha successfully traces the rise of legal instrumentalism over the last two centuries, the reader comes away wondering why Tamanaha seems so fretful about the strength of belief in the rule of law or what accounts for the desire to affirm a non-instrumentalist view of law in the face of the contrary march of history.

The essay offers an answer to these questions. It claims that one source of resistance to the seemingly inexorable progress of legal instrumentalism lies in the non-rational, temporally unbounded human yearning that the rules that guide our lives should deserve our allegiance because they represent a transcendent structure of meaning. Our opposition to legal instrumentalism reflects “faith in the rule of law,” a belief that the law is something other than merely a means to resolve our ordinary conflicts, and that it bestows worth and possibility to its adherents beyond their historical context.

Drawing from Tamanaha's excellent history of the rise of legal instrumentalism, the essay reinterprets what Tamanaha repeatedly emphasizes as the crucial contemporary instrumentalist danger – our growing inability or unwillingness to believe that the law is anything but a tool to advance interest – as loss of faith in the rule of law. The essay thus offers a counterpoint to Professor Adrian Vermeule's reading of the book, arguing that Vermeule may be mistaken in analogizing Tamanaha's thesis to a kind of secularized Pascal's wager. The essay concludes by considering whether there is any value in faith in the rule of law and what that value might be.

Sunday, September 30, 2007

"Education's End"

In recent days, we (along with folks at America magazine, at the Commonweal blog, etc.) have been talking about ye olde topic, "the identity of Catholic universities".  Of course, it's not just those of us who are into the "Catholic university thing" who are hang-wringing about the state of our project; lovers of the university-enterprise generally are uneasy.  See, for example, the new book by my law-school teacher and former dean, Anthony Kronman:  Education's End:  Why Our Colleges and Universities Have Given Up on the Meaning of Life.

In the Yale alumni magazine, there's a short essay adapted from the book, called "Against political correctness:  a liberal's cri de coeur."  (Kronman, it should be emphasized, writes and worries as a liberal and a "secular humanist.").  Kronman writes:

[W]hen a presumptive commitment to the values of political liberalism begins to constrain the exploration of the personal question of life's meaning -- when the expectation that everyone shares these values comes to place implicit limits on the alternatives that may be considered and how seriously they are to be taken -- the enterprise itself loses much of its power and poignancy for the students involved and their teachers lose their authority to lead it. . . .

Today's idea of diversity is so limited that one might with justification call it a sham diversity, whose real goal is the promotion of a moral and spiritual uniformity instead.  It has no room for the soldier who values honor above equality, the poet who believes that beauty is more important than justice, or the thinker who regards with disinterest or contempt the concerns of political life. . . .

Thursday, September 27, 2007

Are Churches (Just) Like the Boy Scouts?

Here is a new paper of mine, called "Are Churches (Just) Like the Boy Scouts?", which I presented at a (great) law-and-religion conference last Spring at St. John's.  The paper talks about, among other things, the account provided by Professors Eisgruber and Sager of the church-autonomy principle; the idea of the "Freedom of the Church" (which I've tried to engage in more detail here); and an "institutional approach" to the Religion Clauses (which is also the subject of a paper I'm doing for our friends at the Villanova Law Review.)  Here is the abstract:

What role do religious communities, groups, and associations play – and, what role should they play – in our thinking and conversations about religious freedom and church-state relations? These and related questions – that is, questions about the rights and responsibilities of religious institutions – are timely, difficult, and important. And yet, they are often neglected.

It is not new to observe that American judicial decisions and public conversations about religious freedom tend to focus on matters of individuals' rights, beliefs, consciences, and practices. The special place, role, and freedoms of groups, associations, and institutions are often overlooked. However, if we want to understand well, and to appreciate, the content and implications of our constitutional commitment to religious liberty, we need to broaden our focus, and to ask, as Professors Lupu and Tuttle have put it, about the “distinctive place of religious entities in our constitutional order.” Are religious institutions special? May and should they be treated specially? If so, how? Why?

For some other, in-places-different views on the subject, see this new paper by Cass Sunstein.

Georgetown Law reverses pro-life policy

According to The Hoya:

Administrators at the university’s Law Center reversed earlier this month a policy prohibiting funding for students at summer internships at organizations that promote abortion rights, after a widely publicized case in the spring which drew protest from hundreds of students.

Under the new policy, announced by Law Center Dean T. Alexander Aleinikoff in a letter published in the Law Center’s student newspaper, the university will no longer consider the mission of each organization when determining grants provided by a student-run organization to students for summer internships.

Wednesday, September 26, 2007

"The Dialogue of Cultures"

The theme for this year's Fall conference at Notre Dame's Center for Ethics and Culture is "The Dialogue of Cultures."  All the info you need is here.

The Notre Dame Center for Ethics and Culture, concerned by the deep cultural divides that characterize so much of our world, has found inspiration in Pope Benedict’s Regensburg Address, and has decided to devote its eighth annual Fall conference to the theme: The Dialogue of Cultures. In interdisciplinary fashion, this conference will take up a variety of questions related to both the difficulties and opportunities involved in addressing cultural conflict. Contemporary political issues will certainly be on the table, as will philosophical and theological inquiries into the broader conception of reason of which Pope Benedict speaks, along with its relation to Christian faith. Legal theorists, also, will bring their perspective to the discussion, perhaps especially in regard to questions of natural law. And, if pattern holds, historians, literary theorists, artists, and people in business will make their own substantial contributions.

40 Days for Life

More information is available here.  (HT:  Amy Welborn.)

Tuesday, September 25, 2007

Court to review constitutionality of lethal injection

The story is here.  This should be an interesting case.  The Court's execution-regulation strategy has, over the years, proceeded down three main tracks:  (1) regulating the fairness of the procedures through which capital sentences are handed down; (2) reducing the number of offenses for which the death penalty is a permissible punishment; and (3) narrowing the categories of offenders who may be executed.  For the most part -- notwithstanding the text of the Eighth Amendment -- there have been relatively few cases dealing with execution-methods.  We'll see . . .

McGreevy on Catholic hiring at Notre Dame

At Commonweal, my friend and colleague John McGreevy has a piece up, responding to Fr. Wilson Miscamble's recent essay on Catholic-hiring in America magazine.  I agree with much of what John says.  As I have already discussed privately with him, though, I was not sure about these few lines:

Framing the problem simply as recruiting Catholic faculty is also ungenerous. Conspicuously absent from Miscamble’s essay are other faculty-Protestants, Muslims, Jews, unbelievers-enthusiastic about the university’s mission. The History department recently hired Mark Noll, a fellow of the American Academy of Arts and Sciences and perhaps the nation’s leading evangelical intellectual. (It has long been the home of George Marsden, another evangelical and the Bancroft Prize-winning biographer of Jonathan Edwards.)

On Miscamble’s abacus they do not count. But they make Notre Dame not just a better university but a better Catholic university. . . .

I did not understand Fr. Miscamble, in his America piece, to be denying that wonderful non-Catholic ND scholars like Mark Noll and Christian Smith "count" as great "mission" hires, but only to be reminding us that -- as great as these scholars are -- they do not "count" toward the particular goal of maintaining a numerical preponderance of Catholics on the faculty.  Should we care about this goal?  I guess I think we should, even though it is certainly true that the mere fact a faculty member identifies as Catholic does not mean he or she will be interested in, understand, or support, the mission (broadly understood) of a Catholic university.  Numbers are not enough.  But -- I take Fr. Miscamble to be arguing -- they do matter, as a starting point.  John also writes:

[S]tudents need intellectual formation too. We can’t guarantee faith. But we can help students learn. And a test of a serious Catholic university is whether we can cultivate the intellectual abilities of our Catholic students so that they become thoughtful, reflective Catholic adults. Most of this is the ordinary hard work of teaching students to write, paint, measure, build, experiment, and think. Some of it is more specific: some students at Notre Dame enter the university unable to locate a Bible passage, much less identify Augustine. They don’t know that Thomas Aquinas immersed himself in Islamic texts, or that the work of Japanese novelist Shusaku Endo is inseparable from his Catholicism. They are unaware that American Catholics are not a majority in American society, or that American Catholics are a tiny percentage of Catholics in a global church.

Here, oddly enough, lies an opportunity that all of us concerned with Catholic education should seize. As institutions that take religion and matters of ultimate concern seriously, in an academic world often content to bracket these subjects as mere matters of opinion, Catholic universities can contribute to the wider world of learning in unusual ways. At the same time, they can attempt to nurture the future leaders that our church, and for that matter our society, so desperately need.

Here, it sounded to me like John was more in agreement than disagreement with Fr. Miscamble.  Wasn't the latter's claim -- at least, his implicit one -- that the "opportunity" John (correctly) identifies is one that a university without a mission-committed faculty -- and, more particularly, a preponderance of Catholic faculty -- can seize?  That is, in order for a Catholic university to do what John says, in these paragraphs, it should be doing, does it need (as Miscamble contends) a predominantly Catholic faculty?  This, it seems to me, is a hard, but really important, question.