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.

Friday, June 17, 2011

Wilson Carey McWilliams

MOJ readers will want to check out the newly published two volumes (here and here) of Wilson Carey McWilliams's collected essays edited by Patrick Deneen and McWilliams's daughter, Susan McWilliams. Patrick has posted a reflection on McWilliams and the introduction to one of the volumes here. The Democratic Soul: A Wilson Carey McWilliams Reader includes "Critical Rebound: Why America Needs a Catholic Recovery," which is based on a lecture McWilliams (who was a Protestant) delivered at Boston College in 2003:

Begin with the Augustinian truth: The Church, like its rivals, aspires to speak of and for the City of God, but it must speak in and to the City of Man. The transcendent is its reason for living, but it must live in order to fulfill that reason. Compelled to adapt to the temporalities, religion must also be watchful lest it become simply a function of time and place. If a church accommodates too much to society, it loses its distinctive character, and along with it any strong sense of community or claim on the identity of its members. But if it makes the social cost of membership too high, a church risks shrinking to the dimensions of a sect. At least implicitly, religion bargains with society, distinguishing between the first principles that are the perennial heart of its faith and the teachings and disciplines that it can de-emphasize or abandon in response to new circumstances.

The current clergy sex abuse scandals represent the most severe crisis in the history of the American Church, calling, in some measure, its bargains with society and with its own membership into question. American Catholics must hope for a season of atonement, knowing that this will bring turbulence and pain. Yet all Americans have a stake in the outcome: The Church’s future in this red-dawning century is inseparable from that of the republic.

Wednesday, June 15, 2011

Nussbaum on Perfectionist and Political Liberalism

One of the summer delights at Villanova is taking a break from research and writing to participate in a biweekly reading group on moral, political, and legal philosophy organized by my friend and colleague Michelle Madden Dempsey. We recently read Martha Nussbaum's article "Perfectionist Liberalism and Political Liberalism," 39 Philosophy and Public Affairs 3 (2011), in which Nussbaum offers a strong defense of Rawlsian political liberalism against Razian perfectionist liberalism. I have some significant reservations about aspects of the article, particularly Nussbaum's characterization of the incompatability of religion and pluralism (14-15) and her discussion of the "irrationality" of Christianity on account of its doctrines of the Trinity and of grace (26-28), where I think her treatment of these issues is much too compressed. Nussbaum does say some nice things about Jacques Maritain, however, and she writes he might be called "the first political [ie, Rawlsian] liberal." (Patrick Brennan and other fans of Maritain can tell us if the compliment is welcome.)

Nussbaum gives an excellent summary and defense of the Rawlsian account of political liberalism and the central importance of respect for persons in that account--in some ways, her reconstruction here is more persuasive and clearer than one finds in Rawls himself. And I especially liked Nussbaum's slap at utilitarianism and its frequent failure to consider the political implications of a utilitarian view. Nussbaum writes, "The concept of political liberalism is simply ignored in a large proportion of discussions of welfare and social policy, as are the challenges Rawls poses to thinkers who would base politics on a single comprehensive normative view," and then drops this footnote: "This is true to some extent even in philosophical utilitarianism: Peter Singer, for example, has never, to my knowledge, addressed the challenge that political liberalism raises for his comprehensive view. It is ubiquitously true in philosophically informed areas of welfarist economics" (6, n.9).

Next up: John Gardner's brilliant paper "What is Tort Law for? Part 1: The Place of Corrective Justice."

Tuesday, June 14, 2011

Are Minnesotans Too Nice to Win the Presidency?

For a relatively small state on the Canadian border, my home state of Minnesota has produced a disproportionately large number of presidential candidates, though all were unsuccessful at winning the White House: Harold Stassen (who sought the Republican nomination eight times between 1948 and 1992 and seriously contended for the nomination in 1948 and 1952), Eugene McCarthy (a former Benedictine novice who came close to winning the Democratic nomination in 1968 and ran again in 1972 and 1976), Hubert Humphrey (the "Happy Warrior" who sought the Democratic nomination in 1952 and 1956, almost defeated John F. Kennedy for the Democratic nomination in 1960, and narrowly lost the general election to Richard Nixon in 1968), and Walter Mondale (who won the Democratic nomination in 1984 but lost the general election to Ronald Reagan in a landslide). There are two Minnesotans now seeking the 2012 Republican nomination: former two-term Governor Tim Pawlenty and U.S. Rep. Michele Bachmann. Compare those six candidates from Minnesota to California's five over that period: Ronald Reagan (1976, 1980, 1984), Richard Nixon (1960, 1968, and 1972), Jerry Brown (1976, 1980, 1992), Alan Cranston (1984), and Pete Wilson (1996).

During last night's Republican debate in New Hampshire, Governor Pawlenty declined to attack former Massachusetts Governor Mitt Romney's health care record despite several attempts by the moderator, John King of CNN, to goad Governor Pawlenty into a confrontation. Gene McCarthy was also reluctant to attack Robert Kennedy in the 1968 campaign (though McCarthy was privately disdainful of Kennedy), and Hubert Humphrey distanced himself from President Johnson and the Administration's policy on the Vietnam War only very late in the 1968 general election campaign, which may have cost Humphrey the election against Nixon. Minnesotans' civility and decency are a tonic for a coarsened political culture, but perhaps they have also been our undoing.

Monday, June 13, 2011

Patrick Leigh Fermor

Patrick Leigh Fermor, who died last Friday (obituary here), was one of the great figures of the twentieth century. His daring military exploits during World War II (where he led guerilla operations on Crete against the Nazis while disguised as a Cretan shepherd and kidnapped the commander of the German garrison) were combined with a remarkable literary career as a master of English prose and the author of two celebrated books (A Time of Gifts and Between the Woods and the Water) describing his 1934 walk across Europe at the age of 18. As Anthony Lane wrote in the New Yorker a few years ago, Leigh Fermor had "so much living to his credit that the lives conducted by the rest of us seem barely sentient--pinched and paltry things, laughably provincial in their scope, and no more fruitful than sleepwalks." But most of the obituaries for Leigh Fermor have neglected or mentioned only in passing his little book about French monasticism, A Time to Keep Silence, which includes this beautiful Latinate paragraph about the monastic life:

To begin with, I slept badly at night and fell asleep during the day, felt restless alone in my cell and depressed by the lack of alcohol, the disappearance of which had caused a suddent halt in the customary monsoon. The most remarkable preliminary symptoms were the variations of my need of sleep. After initial spells of insomnia, nightmare and falling asleep by day, I found that my capacity for sleep was becoming more and more remarkable: till the hours I spent awake; and my sleep was so profound that I might have been under the influence of some hypnotic drug. For two days, meals and the offices in the church--Mass, Vespers and Compline--were almost my most lucid moments. Then began an extraordinary transformation: this extreme lassitude dwindled to nothing; night shrank to five hours of light, dreamless and perfect sleep, followed by awakenings full of energy and limpid freshness. The explanation is simple enough: the desire for talk, movement and nervous expression that I had transported from Paris found, in this silent place, no response or foil, evoked no single echo; after miserably gesticulating for a while in a vacuum, it languished and finally died for lack of any stimulus or nourishment. Then the tremendous accumulation of tiredness, which must be the common property of all our contemporaries, broke loose and swamped everything. No demands, once I had emerged from that flood of sleep, were made upon my nervous energy: there were no automatic drains, such as conversation at meals, small talk, catching trains or the hundred anxious trivialities that poison everyday life. Even the major causes of guilt and anxiety had slid away into some distant limbo and not only failed to emerge in the small hours as tormentors but appeared to have lost their dragonish validity. This new dispensation left nineteen hours of absolute and god-like freedom. Work became easier every moment; and, when I was not working, I was either exploring the Abbey and the neighbouring countryside, or reading. The Abbey became the reverse of a tomb--not, indeed, a Thelema or Nepenthe, but a silent university, a country house, a castle hanging in mid-air beyond the reach of ordinary troubles and vexations. A verse from the office of Compline expresses the same thought; and it was no doubt an unconscious memory of it that prompted me to put it down: Altissimum posuisti refugium tuum...Non accedet ad te malum et flagellum non appropinquabit tabernaculo tuo [Thou hast made the Most High thy refuge...No evil shall befall thee nor any plague come near thy dwelling].

O'Brien and Koons on Natural Law

Matthew O'Brien and Robert Koons have an interesting and provocative series of posts at Public Discourse on, among other things, natural law, metaphysics, social practices, moral absolutes, and the history of twentieth century Anglo-American moral philosophy that MOJ readers will want to check out (here, here, and here).

Sunday, June 12, 2011

Not So Nice Item in Today's New York Times

Katherine Stewart writes in today's New York Times that she's terribly upset that the public school (with a red door, no less) she can see from her Upper East Side apartment is hosting Christian worship services on Sundays. Ms. Stewart writes that Good News Club v. Milford Central School "appeared to suggest that keeping religious groups out of schools after hours amounted to discrimination against their religious views." Indeed, Good News Club (and Rosenberger, and Lamb's Chapel) stands for the proposition that where the government maintains a "limited public forum" (such as after-hours use of public school facilities), it cannot single out religion for special disfavor and discrimination. I gather Ms. Stewart disagrees with that line of cases, or at least she agrees with the recent Second Circuit decision that "worship" (because that's an "activity") is readily distinguishable from other forms of speech, which just goes to show that the distinctions among belief-speech-conduct-activity (and "worship") are often arbitrarily drawn in such a way as to favor whomever is making them at the time.

I'm also puzzled by her grievance that the PTA spent $100,000 last year renovating the school building's restrooms, since "my P.T.A. donations should not be used to supply furniture for a religious group that thinks I am bound for hell." This is merely anecdotal, but, as the parent of children in a local public school, it never crossed my mind to wonder whether my donations to the PTA were an endorsement of the views, religious or otherwise, of whatever groups use the public school facilities after my kids come home (and, even if I were as bothered as Ms. Stewart seems to be, I'd worry that such a complaint would pose a state action or standing problem).

Wednesday, June 1, 2011

Gallup 2011 Values and Beliefs Poll

With all due qualifications about the limits of such polling, the results of Gallup's 2011 Values and Beliefs Poll are interesting for many reasons. I'll highlight two and leave others to weigh in with their favorites in the comments:

1. I'm disturbed by the high (45%) level of moral acceptance of physician-assisted suicide. That number has fallen very slightly over the past few years, but it's a reminder that the physician-assisted suicide debate isn't going away anytime soon.

2. I'm also disturbed by trends on the moral acceptability of pornography. Though pornography is viewed as morally wrong by 66% of the respondents, there's a significant generational difference. 42% of 18 to 34 year-olds think pornography is morally acceptable, which makes the moral acceptablity of pornography the issue with the greatest variation among age groups (just 19% of those over age 55 think it's morally acceptable).

Tuesday, May 31, 2011

John Finnis

While much of the country was anticipating the conclusion of “American Idol,” I was waiting for the arrival of the five volumes of The Collected Essays of John Finnis from Oxford University Press. I’m just now starting to dip into the essays, which gather the highlights of Finnis’s writings since 1967. One is immediately struck by the extraordinary range of topics on which Finnis has written over that period--philosophy of law, of course, but also issues in bioethics, political theory, moral philosophy, moral theology, and history. MOJ readers will be especially interested in the essays in Volume III, Human Rights and the Common Good, which take up John Rawls, immigration, theories of punishment, just war theory, euthanasia, abortion, and marriage. Even those who disagree with him must acknowledge that Finnis's work--preeminently Natural Law and Natural Rights but also his other books and these essays--is among the towering achievements in Catholic intellectual life over the past 50 years. (By the way, now would be a good time to make your plans to attend the conference at Villanova Law on September 30th of this year celebrating Finnis's work.)

I’ll post some thoughts here as I work through the volumes over the coming weeks and months, but I was especially taken by these final words of Finnis's Introduction to Volume V, Religion and Public Reasons. (Each volume's dustjacket has a painting associated with Finnis's native Adelaide, South Australia. The dustjacket for Volume V is the painting below by S.T. Gill, View of Lake Torrens, 22 August):

The gaze of the intrepid Horrocks and Gill into an immensity of distance can be taken as one icon of the interest and attitude we call religion. Another, certainly, is the Baconian search for forms buried deeper by far in physical matter than had been suspected by the late Aristotelian tradition of transmitting science through teaching rather than investigation and replication. And another is the gaze of an Aquinas, awake in the priory chapel in the earliest morning hours to adore the eternal God hidden, as he believed, under the appearances of a wafer of wheat flour, and to make himself ready for the public work of collaborating in understanding everything that matters, and reasoning about truths and other goods.

OL-HQ-997P40 

 

Saturday, May 28, 2011

Utilitarianism

Bernard Williams, John Rawls, and Philippa Foot did a lot over the last half of the twentieth century to make utilitarianism a shady philosophical neighborhood to hang out in, but they’re all dead now. Peter Singer has a review in the TLS (not available online) of Derek Parfit’s new and long-anticipated book (in two volumes and 1400+ pages), On What Matters, which Singer writes is “the most significant work in ethics since Sidgwick’s masterpiece [The Methods of Ethics] was published in 1873.” (Really? More important than On the Genealogy of Morals or A Theory of Justice?) Parfit, so far as I can tell, holds an idiosyncratic version of utilitarianism that is a convergence of modern moral theories ("climbing the same mountain on different sides"). I’ve also been having an exchange over at the Catholic Moral Theology blog with Charlie Camosy about the conference at Oxford on Singer and Christian ethics that Rob Vischer posted about earlier. Suffice to say I think Charlie and I have a disagreement about whether and to what extent there are deep and ineliminable contradictions between consequentialist moral theories (including utilitarianism) and Christian ethics, but to quote Foot: “no decision is more important for practical ethics than that by which we come to embrace or reject utilitarianism.”

Saturday, May 21, 2011

Villanova Law Commencement

I returned from Oklahoma in time to attend Villanova Law's commencement on Friday. One of the highlights was an elegant and self-reflective commencement speech by US Senator Kelly Ayotte of New Hampshire (Villanova Law Class of 1993 and pictured here with Father Peter Donohue, OSA, President of Villanova). Senator Ayotte discussed her career path from a case as a court-appointed defense lawyer to becoming a homicide prosecutor, New Hampshire Attorney General (where she successfully argued Ayotte v. Planned Parenthood at the US Supreme Court), and US Senator. To a class entering a tough job market, Senator Ayotte's message about persistence and overcoming challenges in a legal career was pitch-perfect. Senator Ayotte joined the graduates and their families at the reception afterwards and showed why she won 60% of the vote in last year's New Hampshire Senate race. (Next year's Republican presidential nominee should take note when selecting a running mate.) Other highlights included seeing my former student Megan Schmid, an Air Force officer from Nebraska who gave birth during law school, walk across the stage with her daughter and graduate summa cum laude as she prepares to head off to the Air Force JAG Corps, and visiting with Timothy O'Meara, the Provost of Notre Dame during my time as an undergraduate there, whose grandson (Timothy O'Meara Bransfield) was in the graduating class. Congratulations to the Villanova Law Class of 2011!