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, November 29, 2006

Robert Miller, the Pope, and economic growth

By Rick Garnett

Professor Robert Miller has some thoughts here, at the First Things blog, in response to Pope Benedict XVI's recent remarks on global development:

Speaking about the many people in the world who go hungry, Pope Benedict XVI says that we need “to eliminate the structural causes linked to the system of government of the world economy, which allocates the greater part of the planet’s resources to a minority of the population.” (See the ZENIT Daily Dispatch for November 12, 2006.)

In focusing on the allocation of goods, however, Benedict misdiagnoses the problem, which really concerns economic growth. Like most non-economists, he speaks as if the world’s stock of goods and services were fixed, the only issue being how properly to distribute them. In fact, the total amount of goods and services in the world has been increasing very rapidly for a long time. . . .

It is thus true, as Benedict says, that the greater part of the planet’s resources is enjoyed by a minority of the population, but this is because the greater part of those resources is produced by that same minority of the population. The world economy is not rigged in favor of the rich nations. South Korea did not get rich, and Zimbabwe did not stay poor, because the captains of industry and the Wall Street bankers met in a smoke-filled room and decided that they loved South Korea but hated Zimbabwe. The South Koreans got rich because they earned their riches and continue to do so, year in and year out. Zimbabweans are poor because they produce little—and less now than twenty years ago. People who produce wealth naturally think they are entitled to keep most of it for themselves and their children. I don’t dispute that such people ought to give away more of what they have, but we should be clear that they have this wealth in the first place because they are producing it themselves, not wrongfully taking it away from others.

When some people are producing a tremendous amount of wealth and others are producing little, it is fine, as a stopgap measure, to tell those producing much that they should share what they produce with those producing little. The immediate needs of the poor must be met. But any permanent solution to the problem requires that those producing little start producing more. The conditions needed to generate sustained economic growth are well known: political stability, transparent and just government, respect for the rule of law, strong property rights, free trade, free flows of capital, disciplined monetary policy, and an educated and hard-working population. Most people in the poor nations are willing to work hard, but the other conditions for economic growth rarely obtain in such nations. This is the fault, primarily, of their leaders—sometimes, it is true, aided and abetted by the governments of developed countries—who have largely prevented the emergence of the other factors needed for sustained growth. The tyranny of Zimbabwe’s Mugabe is a particularly spectacular example, but the conditions for economic growth are fragile, and pathological political, legal and economic regimes nowhere near as bad as his are quite sufficient to stifle economic growth.

In our fallen condition, such problems may be intractable. After all, we have it on good authority that we shall always have the poor with us. Still, we have to try to help when we can, and doing so begins with understanding clearly why the poor nations are poor. The problem is one of production, not distribution. Pretending otherwise only makes the problem harder to solve by obscuring its true nature.

Balkin's two abortion rights

By Rick Garnett

In this post, and in this article, Professor Jack Balkin proposes and fleshes out the argument that we should think in terms of two abortion rights, not one:

The first right to abortion is a woman's right not to be forced by the state to bear children at risk to her life or health. The second right is a woman's right not to be forced by the state to become a mother and thus to take on the responsibilities of parenthood, which, in our society are far more burdensome for women than for men. Although the first right to abortion continues throughout pregnancy, the second right need not. It only requires that women have a reasonable time to decide whether or not to become mothers and a fair and realistic opportunity to make that choice. . . .

The state's interest in protecting unborn life is most compelling in the later stages of pregnancy. But letting states vindicate this interest when it is strongest is not necessarily inconsistent with the second right to abortion. When a woman's health and life are not at risk, the second right requires that women have a right to a fair and realistic opportunity to choose whether or not to become a mother, and in most cases this choice can usually be made in the earlier stages of a pregnancy. . . .

There's a lot more (about, among other things, the "discourse shaping" character of his approach).  Take a look.  For my own part, two quick thoughts:  First, it seems that Balkin's handling of the "first" abortion right does not say enough about what he means by "health."  Does he mean to say -- and, his discussion of self-defense might suggest that he does -- that the first abortion right is not timebound because women always have a right not to be forced to bear children at the risk to her life or physical health?  Or, would he incorporate into his first right the much more expansive understanding of "health" that seems to be at work in the Court's cases?

Second, I wonder if the discussion, or the analysis, change if, instead of asking when the interest of the state in protecting fetal life justifies limiting the exercise of the "second" abortion right, we ask instead about the point at which the moral claims of the unborn child -- his or her own moral claims, and not just the interests of the "state" -- justify such limits?

"Christianism" and Christian Democracy

By Rick Garnett

In recent months, Andrew Sullivan has been flogging to death his favorite new epithet, "Christianist."  Here is an interesting post, from The American Scene, on "Christianism" and Christian Democracy.  (The latter movement / tradition was discussed on MOJ recently, here and here.)

"Putting Parents First"

By Rick Garnett

In this Weekly Standard essay, "Putting Parents First," Yuval Levin outlines a "new domestic policy approach for conservatives": 

American conservatives have worked politically in recent decades to advance two sets of goods: the family and the market. They have advocated traditional values that sustain cultural vitality, and economic freedom that brings material prosperity. These two sets of ideals are mutually reinforcing to an extent. The market relies on a stable and orderly society made possible by sturdy families and strong social institutions; and freedom from unduly coercive authority is an essential prerequisite for making moral choices.

But markets and families are also in tension with one another. The market values risk-taking and creative destruction that can be very bad for family life, and rewards the lowest common cultural denominator in ways that can undermine traditional morality. Traditional values, on the other hand, discourage the spirit of competition and self-interested ambition essential for free markets to work, and their adherents sometimes seek to enforce codes of conduct that constrain individual freedom. The libertarian and the traditionalist are not natural allies. . .

The tension between family and market is a source of unease for American families, and has often been a source of friction in the conservative movement. But the present moment offers an opportunity to turn that tension into a font of energy for conservatives, and to turn the conservative movement into the long-term home of the parenting class.

In this effort, there is a role for government. The conservative insight that government power is inherently corrosive of the roots of self reliance must not be forgotten, and surely remains true. But it must also not be turned into a case against all uses of public policy for public ends. Some balance must be found, so that limited government can be turned to positive purposes, and there is no better way to seek that balance than keeping in mind the two competing but complementary goals of strong families and free markets, while also keeping in mind the interests of the parenting class. Looking toward the 2008 election and beyond, conservatives confront a tremendous opportunity, if we are ready to seize it.

Monday, November 27, 2006

Weigel on the Pope's Turkey visit

By Rick Garnett

A good piece, in Newsweek, on -- among other things -- religious freedom in Turkey:

. . .  Although the Ecumenical Patriarchate of Constantinople does not exercise the jurisdictional and doctrinal authority in world Orthodoxy that the papacy exercises in world Catholicism, it does enjoy a historic status as "first among equals" in Orthodoxy, plays an important role in coordinating Orthodox affairs globally and is regarded as the spiritual center of global Orthodoxy by Orthodox believers. Yet it is Turkish law, not the canons of the Orthodox Church, that determines who is eligible to be elected ecumenical patriarch, and Turkish law limits the pool of possible candidates to Turkish citizens living in Turkey. As a recent memorandum from the Ecumenical Patriarchate put it, "the result of these restrictions is that in the not so distant future the Ecumenical Patriarchate may not be able to elect a Patriarch."

The Turkish government closed the patriarchate's seminary, the Theological School of Halki, in 1971, and has refused, despite numerous requests, to reopen it.

Turkey will not grant the Ecumenical Patriarchate legal "personality," in defiance of the Lausanne Treaty of 1923, which defined the legal position of minorities in Turkey; this refusal to deal with the patriarchate as a legal "person" (as churches are regarded throughout the West) is, according to the patriarchate memo, "a major source of many other problems." For to deny that the patriarchate is a legal entity with certain rights, an entity that can work with the Turkish government within the framework of the law, means that all issues between the patriarchate and the state become political issues, subject to political pressures and counterpressures—especially problematic, since less than one tenth of 1 percent of the Turkish population is Orthodox. . . .

No Christian community in the West would tolerate such conditions, which involve violations of basic human rights. If Turkey is to be the model of a modern Islamic society, it must remove restrictions on the exercise of some of the most fundamental aspects of religious freedom: the freedom of religious communities to educate their people, perform works of charity and choose their leaders according to their own theological self-understanding. Might Benedict XVI's pilgrimage to Turkey focus the world's attention on the stranglehold the Turkish state attempts to exercise on Ecumenical Patriarch Bartholomew and his people, such that that stranglehold begins to ease? If the 79-year-old pontiff managed that, Christian unity and the dialogue between the West and Islam would both be advanced.

Modernity: Yearning for the Infinite

By Rick Garnett

If you are going to be around South Bend this weekend, don't miss the Center for Ethics & Culture's Fall Conference, "Modernity:  Yearning for the Infinite."  (For that matter, get to South Bend for it!)  Here is the conference schedule. 

A few (very few) highlights:  Professor Alasdair MacIntyre is deliving the conference keynote on Thursday night.  Note also that Steve Smith -- whose recent book, Law's Quandary -- has been discussed here often is delivering a paper on Friday morning.  Richard Stith is presenting "Realists, Madmen, and the Death of Law" on Saturday.  And, MOJ's own Rob Vischer is presenting "Rescuing the Relational Dimension of Conscience" on Friday afternoon.  And so much more . . .

Friedman's greatest legacy

By Rick Garnett

Mark makes the strong case here that the anti-corporate-social-responsibility argument should not be our focus as we remember Milton Friedman's contributions.  What about school choice?  Check out this op-ed, "Friedman's Greatest Legacy," here.

Levinson on Religion and Politics

By Rick Garnett

Sandy Levinson has this post, "Religion and Politics," over at Balkinization.  Commenting on the role played by religious faith -- and, more specifically, by churches -- in the civil-rights movement, Levinson writes:

Political liberals and secularists, like myself, have to wrestle with the meaning of this aspect of the Civil Rights Movement. Because of the "culture wars" . . . , many, perhaps most, political liberal-secularists have been busy denouncing the role played by religion in American politics. But consider that the Catholic Bishops, who have, from my perspective, unfortunately concentrated their energies on the issues of abortion and same-sex marriage, have also engaged in eloquent criticism of American actions in the Iraq War, and the National Conference of Catholic Bishops is among the most important groups that still support the idea of a vigorous welfare state. One could obviously present other examples, including the attempts of Jim Wallis and others to present a more politically progressive version of Evangelical politics.

This is not a question of learning to talk about "values" or professing one's own religiosity. I remain a thoroughly secular Jew, with the operative word, when all is said and done, being the adjective. Rather, it is how "we" who have no religious "faith" manifest our respect for and make alliances with those who do have very deep religious commitments and are, as with King, quite literally willing to put their lives on the line in behalf of the most fundamental values of instantiating "equal concern and respect" even for those who pick up our garbage.

Saturday, November 25, 2006

Out-of-wedlock births: 4 in 10

By Rick Garnett

According to this story in the New York Times,

Out-of-wedlock births in the United States, on the rise since the late 1990s, have now climbed to a record high, accounting for nearly 4 in 10 babies born last year, government health officials said Tuesday.

But while such births have long been associated with teenage mothers, the number among 10- to 17-year-olds actually dropped last year — as did that group’s overall birthrate, to the lowest level on record.

Instead, births among unwed mothers rose most sharply among women in their 20s.

This strikes me as a bad thing.

"Corporate Social Responsibility" is "bunk"?

By Rick Garnett

So says Henry Manne, dean of the George Mason University School of Law, in this opinion piece, "Milton Friedman was Right."

An integral part of the older notion of public utility regulation required that the enterprise be, or act like, a monopoly (whether "natural" or not), in order to be affected with a public interest. But in today's confusion, there is no such requirement. No arguments, weak as they are, about natural monopoly, market failure, government creation of corporations or the alleged government gifts of limited liability and perpetual existence, are required to justify the demands now regularly placed on business entities. Any large enterprise, no matter how competitive its industry and no matter how successfully it is fulfilling the public's desires, has a social responsibility--a term that makes mockery of the idea of individual responsibility--to use part of its resources for "public" endeavors. Today's favorite causes are environmental protection, employee health, sales of goods at below-market prices, weather modification, community development, private enforcement of (not merely abiding by) government regulations and support of cultural, educational and medical facilities.

How did this transposition from private to public responsibility come about? After all, even the largest corporation started simply as an idea in someone's head. At first this person hires employees, borrows capital or sells equity, produces goods or service and markets a product. Nothing about any of these purely private and benign arrangements suggests a public interest in the outcome. But then the business begins to grow, family stock holdings become more diffused, additional capital is required and, voilà, another publicly held corporation. In other words, another American success story.

But what has happened to implicate public involvement in the management or governance of these enterprises as they grew from a mere idea? Nothing. And if that nothing be multiplied by tens or hundreds or thousands, the product is still zero. So where along the line to enormous size and financial heft has the public-private nexus necessarily changed? True, there are now a large number of complex and specialized private contracts, but every single one of these transactions is based on private property, freedom of contract, and individual risk and reward. If one apple is a fruit, even a billion apples do not become meat.

The origins of this transformation lie in the minds of people who do not like or appreciate the genius of capitalist success stories, including always politicians, who will generally make any argument in order to control more private wealth. Of course, the social responsibility of corporations is always tied to the proponents' own views of compassion or justice or avoidance of a cataclysm. But the logic of their own arguments requires that essentially private corporations be viewed as somehow "public" in nature. That is, the public, or the preferred part of it, often termed "stakeholders" (another shameful semantic play, this time on the word "shareholders"), has a pseudo-ownership interest in every large corporation. Without that dimension in their argument, free market logic would prevail.

The illusion of great and threatening power, the superficial attractiveness of the notion, and the frequent repetition of the mantra of corporate social responsibility have made this fallacy a part of the modern corporate zeitgeist. Like the citizens who were afraid to tell the emperor that he was naked, no responsible business official would dare contradict the notion publicly for fear of financial ruin, even though the practice continues to cost shareholders and society enormous amounts. This is especially so in large-scale retail businesses like Wal-Mart or Coca-Cola or BP that are highly vulnerable to organized public criticism. Our laws against extortion do not function effectively when it comes to corporations. And so to some extent these private entities have indeed, via the social responsibility notion, been converted into crypto-public enterprises that are the essence of socialism. Milton Friedman was right again.

What say you, Mark Sargent?  Let's have a "Law Deans Corporate Law Smackdown."

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