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 7, 2007

"Rules, Standards, and Principles"

Here's something from a post over at Steve Bainbridge's other blog, about "rules, standards, and principles."  Quoting Larry Solum, Steve writes:

  • Rules are the most constraining and rigid. Once a rule has been interpreted and the facts have been found, then the application of the rule to the facts decides the issue to which it is relevant.
  • Standards provide an intermediate level of constraint. Standards guide decisions but provide a greater range of choice or discretion; for example, a standard may provide a framework for balancing several factors.
  • Principles are even less constraining. Principles provide mandatory considerations for judges. Whereas, standards identify an exhaustive set of considerations for adjudication or policy making, a principle identifies a nonexhaustive set, leaving open the possibility that other considerations may be relevant to the decision. ...

So, what is it that Catholic Social Teaching gives us?  Rules, standards, or principles?

What's the harm in religious establishments?

Jack Balkin in this post neatly cuts right to what I think is the interesting question at the heart of the Court's pending Establishment Clause case, Hein v. Freedom from Religion Foundation.  He writes:

Standing to sue should depend on the nature of the underlying substantive right. In my opinion, the Establishment Clause does not simply protect citizens from certain spending decisions (although it does do that). It protects them from certain dignitary harms caused by the government's endorsement of one religion over another, of religion in general over non-religion, or of atheism over religion. In other words, the Establishment Clause requires the government to give equal respect to its citizens with respect to religious questions, both in its symbolic activities as well as in its expenditures of money. Thus, if the Government were to erect a large sign from general appropriations stating "There is no God," this would violate the Establishment Clause because it imposes a dignitary harm on religious citizens. . . .

If my substantive theory of the Establishment Clause is correct-- and it is more or less the theory that the Court currently holds-- then then any citizen of the U.S. who suffers a dignitary harm by reason of endorsement in violation of the Establishment Clause has standing to sue, and any citizen of a state who suffers dignitary harm by reason of endorsement by a state has standing to sue. A person's status as a taxpayer is irrelevant because it has nothing to do with the underlying nature of the substantive right.

It seems right to me that our discussion about "standing" to bring Establishment Clause claims has to include claims about what, in fact, is the harm in establishments of religion and on the nature of the underlying "substantive right" protected or conferred by that provision.  The question, of course, is whether Prof. Balkin is right about the "nature" of that right, or indeed whether the Establishment Clause creates and / or protects individual "substantive" rights at all.  (Some have suggested, after all, that it is more of a "structural" provision.)

That said, it is not clear to me why or how religion-related spending decisions inflict a dignitary harm on those who object to them.  (Which is not to say such decisions are permissible, or wise.)  Is it because the government's decision to spend, over my objection, on a religion-related project to which I object insults my dignity? Is the relevant injury the painful experience of having my objection go unheeded?  Or, is it because the spending decision (to which I object) expresses a claim about me, and my worth, that insults my dignity?  Something else?  (Maybe these questions just reflect the fact that I am not convinced by the Memorial and Remonstrance-type argument that such spending decisions burden the conscience of those who object.)

"The Cognitively Illiberal State"

Prof. Dan Kahan has a new paper, "The Cognitively Illiberal State," which should be of interest to MOJ readers.  Here is the abstract:

Ought implies can. This paper investigates whether the central moral directives of liberalism are ones citizens can - as matter of human cognition - be expected to honor. Liberalism obliges the state to disclaim a moral orthodoxy and instead premise legal obligation on secular grounds accessible to persons of diverse cultural persuasions. Studies of the phenomenon of cultural cognition, however, suggest that individuals naturally impute socially harmful consequences to behavior that defies their moral norms. As a result, they are impelled to repress morally deviant behavior even when they honestly perceive themselves to be motivated only by the secular good of harm prevention. The paper identifies how this dynamic transforms seemingly instrumental debates over environmental regulation, public health, economic policy, and crime control into polarizing forms of illiberal status competition. It also proposes a counterintuitive remedy: rather than attempt to cleanse the law of culturally partisan meanings--the discourse strategy associated with the liberal norm of public reason--lawmakers should endeavor to infuse it with a surfeit of meanings capable of affirming a wide range of competing worldviews simultaneously.

Kahan's conclusion -- i.e., that we ought not to pretend we can "cleanse the law of culturally partisan meanings" -- seems right to me, as does his descriptive claim that "liberalism" cannot -- "public reason" arguments notwithstanding -- be regarded as a morally neutral project.  I wonder, though . . . is the reason why Kahan is right just because "[s]tudies of the phenomenon of cultural cognition . . . suggest that individuals naturally impute socially harmful consequences to behavior that defies their moral norms"?  Yes, perhaps we do.  But, isn't the reason why there is no point in cleansing law of "culturally partisan meanings" because, in fact, the enterprise of law is inescapably a moral one?

An unconstitutionally Catholic Court?

Michael S. blogged, a few days ago, about Michael Gerhardt's paper, in which he suggests that the "Catholic majority on the Supreme Court may be unconstitutional."  Here's Stuart Buck's response to Prof. Gerhardt.

Reno on Bloom and the Catholic University

At the First Things blog, Rusty Reno has some thoughts, occasioned by the 20th anniversary of Allan Bloom's Closing of the American Mind, about Catholic universities:

Leaders in Catholic education should revisit Bloom’s spiritual diagnosis. To a large extent, a similar worry about passionless, commitment-free inquiry dominates John Paul II’s teaching on education, philosophy, and the dignity of reason. . . .

Over the years, I have observed that most Catholic deans, provosts, and presidents ignore or even contribute to the slide of higher education into soulless relativism. Most take the integrity of reason and the truth claims of the Catholic Church for granted, even as it slowly declines into the standard, amoral, post-cultural agenda of secular education. Some actively undermine the relationship of the university to the Church in order to deploy the university as part of the liberal Catholic resistance to the conservative trends in the larger Church. Others imagine that multicultural educational ideologies rightly express a Catholic commitment to social justice and the preferential option for the poor.

Every Catholic university has its own story. But the basic dynamic tends to be the same. For all their good intentions, most Catholic administrators are hopelessly confused and inconsistent when it comes to the goals of education. Just talk to a Catholic dean or college president. They do not want non-Catholic students to be “uncomfortable,” and they want everyone to feel “included.” Then, not a minute or two later, the conversation shifts, and the very same proponents of inclusion will insist that we need to challenge our students with critical thought and diverse perspectives. Hello! You can’t have it both ways—making students comfortable and challenging them.

Of course, what most Catholic educators usually mean is that a professor should challenge the traditional beliefs of Catholic students and challenge any conservative political or economic beliefs that students are foolish enough to expose. This critical project, which is conveniently well-coordinated with the agenda of secular education, has the desired effect of making administrators and faculty feel good about their great vocation as critical educators while—miracle of miracles—making anybody who disagrees with the teachings of the Catholic Church feel comfortable and welcome.

The students are not stupid. Those with traditional and conservative convictions quickly realize that the deck is stacked against them, and they learn to separate their religious and moral and political convictions from the classroom. They remove their souls from the university. The non-Catholic students realize that few faculty create a pedagogical environment where Catholic teaching can make a claim on their intellects and lives. They relax, gratified that they can get an education without having to put any energy into arguing against and resisting. Their souls are left quiescent and unchallenged. What Bloom feared becomes the atmosphere of Catholic education: the question of how we should live fails to enter into the center of university life.

Maybe I’m simple-minded, but I don’t think the solution is all that difficult to understand. Catholic universities should challenge students—with the full force of the Catholic tradition. A truth that presses us toward holiness is a far greater threat to naive credulities and bourgeois complacency than anodyne experiences of “difference” or easy moves of “critique,” which bright students master and mimic very quickly.

I don’t think that the lectern should be turned into a pulpit, but the soul of Catholic education requires classrooms haunted by the authority of the Church and the holiness of her saints. That was the actual, experienced effect of the old system, when large numbers of faculty were priests and nuns.

Every culture demands and prohibits, encourages and exhorts. The desire to have a university free from demands, a classroom sanitized and unhaunted, is nothing short of desiring an education free from culture. Many professors and administrators today desire this kind of education. For multiculturalism, “diversity,” and disembodied “critical thinking” add up to an imaginary, spectral meta-culture that is, by definition, no culture at all. And as I have said, students are not stupid. They realize that an education free from the commanding truths of culture is an invitation to live as clever, well-trained, and socially productive animals; and like all good students, they live up to the expectations.

Today the single greatest goal of Catholic universities should be to withdraw this debasing invitation. All students are well served by an educational atmosphere shaped by the demands of Catholic culture, demands that bear down upon us with the frightening force of divine commandments. For the dangerous commitments of truth and not the cool dispassion of critique open minds.

Any implications, do we think, for the enterprise(s) of Catholic law schools?

"You Can't Hurry Love"

In this paper, Prof. Andrew Koppelman (Northwestern) argues that "antidiscrimination provisions for gay people should have religious objections."  (He is responding, in this paper, to Prof. Chai Feldblum's article, "Moral Conflict and Liberty.")  Well worth a read.

Friday, March 2, 2007

Blogging hiatus

For the next several days, I'll be in Heaven, a.k.a., Little Cottonwood Canyon, near Salt Lake City.  (Brigham Young was right:  "This is the place.")  So, no blogging for me.  Feel free, however, to click here for the snow report.

The best colleges for Catholics

Here's a question -- a "bleg", some call it -- for all MOJ-ers and readers:  Which colleges and universities are best for Catholics?  Now, I do not mean to limit the possibilities to Catholic colleges and universities.  Are there places -- Catholic or not -- where the Catholic community is particularly strong, where the Catholic campus ministry is particularly good, where scholars (Catholic and not) are noteworthy for taking seriously religious perspectives, questions, and commitments?  Are there any resources out there that might answer this question?

Thursday, March 1, 2007

O'Malley and deterrence

I agree with Rob, of course, that the "step one" question about the death penalty -- i.e., is it a morally permissible punishment -- should not be answered in terms of its deterrence-related benefits.  And, while I do think that Gov. O'Malley's position and arguments have been (imperfectly) formed by Catholic teaching on the dignity of the human person, I agree with Rob that it would have been better had O'Malley made it more clear what "work" the deterrence-claims are doing in his argument.  He could have said, for instance, "Reasonable people can disagree about whether the death penalty, as a general matter, is consistent with our commitment to the dignity of the human person.  That said, even if the death penalty is sometimes justifiable, surely its costs -- financial and other costs -- and its lack of deterrence benefits -- weigh in favor of abolition."

Tuesday, February 27, 2007

Bainbridge on conscience and Catholic facilities

Our own Prof. Bainbridge comments here on Wesley Smith's recent piece, warning about the proposed California assisted-suicide law and its effect on religious health-care providers.