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, March 14, 2007

"Law and the Catholic Social Tradition"

By Rick Garnett

I'm teaching a seminar this upcoming quarter (8 weeks) at the University of Chicago called "Law and the Catholic Social Tradition."  I'm very grateful to all those MOJ readers and bloggers who e-mailed suggestions about readings and structure.  (Although I wondered if any students would be interested, it appears that it will fill up.) 

Obviously, there are serious limits to what can be done in 8 weeks, and I'm sure there are tons of issues (e.g., the death penalty, abortion, environmentalism) that I'm missing.  I ended up trying to focus on themes rather than issues.  I ended up relying on the Compendium more than on particular encyclicals.  (Clearly, something is lost by doing this.)  And, I also tried, where appropriate, to incorporate both the "progressive" and "conservative" takes on the tradition, and to put them in conversation with each other (e.g., Bainbridge v. Sargent).  We'll see how it goes!  (Note:  This is still subject to change, so if you have suggestions, feel free to pass them on.)

If anyone is interested, the readings follow the jump . . .

Continue reading

Monday, March 12, 2007

"About" religion or "from" religion?

By Rick Garnett

Lisa's post, about Stephen Prothero's critique of religious illiteracy, raises -- as she notes -- a great question:  Is the "Catholic legal theory" project (or, more generally, the "Catholic university" project) more about (a) responding to, and ameliorating, religious illiterarcy (by educating the relevant audiences about the existence and content of the Catholic tradition and perspective), or (b) looking, as Catholics, for the truth and speaking, as Catholics, about and to the world? 

I know that, in my life as a religious-liberty litigator, I often talked in "viewpoint-neutrality / public-forum" terms about the importance of giving the "religious perspective" a "place at the table."  For better or worse, I now have serious doubts about this approach.  I do think, that the point of a Catholic university / law school / legal scholar has to be about more (which is not to say it cannot also be about) responding to the problem Prothero identifies.

On an entirely different front, it strikes me, from the Prothero quotes that Lisa provides, that Prothero is assuming quite a bit about the political implications of increased religious literacy.

Sunday, March 11, 2007

"The Brain on the Stand"

By Rick Garnett

Jeffrey Rosen has a long piece in today's New York Times Magazine called "The Brain on the Stand."  The piece is about neuroscience, neuroimaging, law, punishment, criminal responsibility, and lots more.  (It quotes, a number of times, MOJ-friend Carter Snead, whose new paper on neuroimaging and capital sentencing is available here.)

This is fascinating stuff, I think.  The piece has too much going on to allow for a blog-post summary, but here's just one paragraph which jumped out at me.

“To a neuroscientist, you are your brain; nothing causes your behavior other than the operations of your brain,” [Harvard's Joshua] Greene says. “If that’s right, it radically changes the way we think about the law. The official line in the law is all that matters is whether you’re rational, but you can have someone who is totally rational but whose strings are being pulled by something beyond his control.” In other words, even someone who has the illusion of making a free and rational choice between soup and salad may be deluding himself, since the choice of salad over soup is ultimately predestined by forces hard-wired in his brain. Greene insists that this insight means that the criminal-justice system should abandon the idea of retribution — the idea that bad people should be punished because they have freely chosen to act immorally — which has been the focus of American criminal law since the 1970s, when rehabilitation went out of fashion. Instead, Greene says, the law should focus on deterring future harms. In some cases, he supposes, this might mean lighter punishments. “If it’s really true that we don’t get any prevention bang from our punishment buck when we punish that person, then it’s not worth punishing that person,” he says. (On the other hand, Carter Snead, the Notre Dame scholar, maintains that capital defendants who are not considered fully blameworthy under current rules could be executed more readily under a system that focused on preventing future harms.) . . .

Even as these debates continue, some skeptics contend that both the hopes and fears attached to neurolaw are overblown. “There’s nothing new about the neuroscience ideas of responsibility; it’s just another material, causal explanation of human behavior,” says Stephen J. Morse, professor of law and psychiatry at the University of Pennsylvania. “How is this different than the Chicago school of sociology,” which tried to explain human behavior in terms of environment and social structures? “How is it different from genetic explanations or psychological explanations? The only thing different about neuroscience is that we have prettier pictures and it appears more scientific.”

Morse insists that “brains do not commit crimes; people commit crimes” — a conclusion he suggests has been ignored by advocates who, “infected and inflamed by stunning advances in our understanding of the brain . . . all too often make moral and legal claims that the new neuroscience . . . cannot sustain.” . . .

Still, Morse concedes that there are circumstances under which new discoveries from neuroscience could challenge the legal system at its core. “Suppose neuroscience could reveal that reason actually plays no role in determining human behavior,” he suggests tantalizingly. “Suppose I could show you that your intentions and your reasons for your actions are post hoc rationalizations that somehow your brain generates to explain to you what your brain has already done” without your conscious participation. If neuroscience could reveal us to be automatons in this respect, Morse is prepared to agree with Greene and Cohen that criminal law would have to abandon its current ideas about responsibility and seek other ways of protecting society.

Stay tuned!

Saturday, March 10, 2007

Religious freedom and gay rights

By Rick Garnett

The British Parliament's joint committee on human rights has issued a report that appears to call for increased (and intrusive) supervision of the content of education in private and religious schools, toward the end of making sure these schools do not discriminate on the basis of sexual orientation.  Here's a bit:

In our view, the prohibitions on discrimination in the Regulations limit the manifestation of those religious beliefs and that limitation is justifiable in a democratic society for the protection of the right of gay people not to be discriminated against in the provision of goods, facilities and services. ... [T]here would be a compatibility problem if the Regulations provided for a wider exemption which expressly exempted religious bodies from the obligation not to discriminate on grounds of sexual orientation. ... An exemption to protect the absolute right of freedom of conscience and religion would therefore be likely to be justifiable, but not an exemption to protect the right to manifest one's conscience or religious belief, which, as we have sought to explain above, is capable of justified limitation and in our view can be justifiably limited in order to protect gay people from discrimination.

And then this:

We do not consider that the right to freedom of conscience and religion requires the school curriculum to be exempted from the scope of the sexual orientation regulations. In our view the Regulations prohibiting sexual orientation discrimination should clearly apply to the curriculum, so that homosexual pupils are not subjected to teaching, as part of the religious education or other curriculum, that their sexual orientation is sinful or morally wrong. Applying the Regulations to the curriculum would not prevent pupils from being taught as part of their religious education the fact that certain religions view homosexuality as sinful. In our view there is an important difference between this factual information being imparted in a descriptive way as part of a wide-ranging syllabus about different religions, and a curriculum which teaches a particular religion's doctrinal beliefs as if they were objectively true. The latter is likely to lead to unjustifiable discrimination against homosexual pupils.

(Thanks to David Frum for the links.)

State schools, private school, and the poor in the developing world

By Rick Garnett

It turns out that it is not only in America where the government's schools fail the poor, and special-interests slight the amazing achievements of private schools.  Check this out.

The novel and human rights

By Rick Garnett

Our fellow blogger here at MOJ, Michael Perry, has written, among other things, an important book called "The Idea of Human Rights."  I'd love to get his reactions to this review, by Joshua Muravchik, of a new book by Lynn Hurt of a book called "Inventing Human Rights."  The book asks, "[w]hat had happened that suddenly made the notion that 'all men are created equal and endowed with . . . unalienable rights' so resonant, both in Europe and America," in the late 18th century?

Hurt's answer?  "Brain changes" -- that is, "new feelings" that were, in large part, the product of a new art form, the epistolary novel.  Interesting.  Michael?

"Veil of Tears"

By Rick Garnett

David Bell has an interesting review (subscribers only) in a recent issue of The New Republic John Bowen's book, Why The French Don't Like Headscarves:  Islam, the State, and Public Space.   Bell emphasizes, first, "the utter centrality of conflicts with organized religion to the identity of the French Republic, dating back to the French Revolution"; second, "the fact that in the French Republican imagination, when it comes to religion, women hold a critical and distinct place"; and third, the country's "sudden and jarring" shift away from being a Catholic country.  Later, he writes:

A more important reason [for the headscarves controversy], which Bowen also discusses, involves the complex and even deceptive nature of laïcité itself. Advocates of the concept tend to define it in terms of the separation of church and state, but in practice it has as much to do with control as with strict severance. The state may insist on keeping religion out of the public sector, but it also supports religion to an extent that Americans would find unimaginable, under the justification that religious belief in general contributes to the health of civil society. . . .

French authorities have long tried to pursue the same pattern of accommodation and control with Islam. . . .It often seems that what matters most to these officials is not an Islam separate from the Republic, but an Islam subordinate to it.

This context suggests an alternate explanation for what drove the headscarf controversy forward. The crucial factor may not be that Muslim schoolgirls were "bringing religion" into the schools, but that they were actively defying school officials. The secular state can accommodate certain "public" forms of religion, but it will not tolerate blatant religious opposition to state authority, however minor the gesture, however young the opponent. . . 

Friday, March 9, 2007

Blankley on Gore and indulgences

By Rick Garnett

Lisa posts here Tony Blankley's comparison of Al Gore's claim that his purchase of carbon-credits excuses his high levels of energy consumption with "what the Catholic Church calls 'indulgentia a culpa et a poena'", and asks if anyone has any reactions.

I am no fan of Al Gore, agree that many self-styled environmentalists are smug hypocrites, and agree also that there is a not-insignificant strand of irrational (which, I guess, Blankley thinks is the same thing as "religious") thinking in some quarters of the environmentalist movement.  Still . . . the comparison seems silly. 

Al Gore's claim, if I understand it, is not that buying carbon offsets earns him forgiveness or expiation for the sin of energy consumption; his claim, instead, is that he is actually preventing, or undoing, the wrong or harm that his consumption would otherwise cause.  That is, by purchasing the offset, the idea is that he avoids doing wrong at all (because he engineers things so that his net contribution to the carbon problem is reduced), not that he expresses concretely his contrition.

As for the "animistic" church - - again, I don't think highly of Gore, but I wonder how many people -- even those whose environmentalism has a "religious" vibe -- really believe that "any using or changing of the physical world (such as burning carbon) is a sin against the sacred, holistic, living world (the Gaia hypothesis)."

Thursday, March 8, 2007

Still more on money and priorities

By Rick Garnett

I appreciate all the responses to my and Susan's initial posts on spending priorities and the needs of the "have nots."  S. Margaret John Kelly invokes the "universal destination of goods" as a necessary step along the road to "global solidarity [and] justice."  I have to admit, I've always found this idea a slippery one.  One the one hand, "God intended the earth with everything contained in it for the use of all human beings and peoples."  (Gaudium et spes).  On the other, the Church's social teaching clearly affirms that private property is both a "sacred" right and an important, freedom-facilitating intermediate institution.  (Rerum novarum).  That said, I certainly agree with Kelly that moral transformation is required for social transformation.

Susan is right, of course -- and I did not intend to suggest otherwise -- that the facts social problems are hard and the implications of CST not always clear does not mean we can "throw up our hands and say, 'gosh this is hard.'"  It does mean, though, that we shouldn't think (and I know that Susan does not think) that CST will often justify a "sheesh, this is easy, if we just remember the principle of _____" reaction to a social or policy question.

Rob notes that spending money on appropriate priorities need not require increased taxation, just re-allocation.  I meant to acknowledge as much in my original post.  ("I imagine we could go through the federal budget and find hundreds of billion-dollar items that we would want to trade for immunizing all children.").  I agree with Rob that it now seems pretty clear that at least some of the $406 billion spent on the war so far could have been better used.  (I'm confident we could say the same thing of, say, the way national, state, and local officials spend the money ostensibly directed at educating our children, or doing right by our senior citizens, or . . . ).

Helping the "Have Nots"

By Rick Garnett

Lots of problems are really hard to solve.  But, as Susan reports, it is striking how (relatively speaking) little money it would take to alleviate a lot of suffering and disadvantage.  Certainly, if one asks "what is more important, ice cream, on which the Europeans spend $11 billion, or immunizing children and providing clean drinking water for all, both of which could be achieved for more or less the same amount," the answer is clear.

That said, it is people, not states, who are spending these billions on perfume, ice cream, and cruise ships.  In order for the money they are spending to be re-allocated to immunizations and water-treatment, that money would need to be acquired by states through taxation (or, I suppose, NGOs and charitable organizations through donations).  And, what would be the effects, in all kinds of other areas (economic growth, job creation, prices of goods, etc., etc.) of the policies that would be required in order to acquire the money and reallocate it from ice cream to immunizations?  I just don't know.

Reflecting on the numbers that Susan posted, do we think that Peter Singer is right, and that it is simply immoral for someone who is aware of these numbers to choose to spend her money on ice cream or a cruise instead of giving it to a water-treatment charity?  Or, moving from the private to the public, is it immoral for a state government like California to spend a billion dollars on speculative stem-cell research instead of spending that money to immunize every child?

To be clear -- I don't think I'm disagreeing with Susan, at all, that it would be better if, given a pot of several billion dollars, it went to clean drinking water and immunizations for all, rather than to cruises (even if we take into account all the jobs that would be lost were there no cruise industry.)  (I imagine we could go through the federal budget and find hundreds of billion-dollar items that we would want to trade for immunizing all children.)  But, how do we get there?  Does CST tell us?  Does it, again, give us rules, standards, or principles?

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