Wednesday, January 9, 2008
A few days ago, Mirror of Justice went over the one-million-page-views mark. I know, I know . . . this is piddly compared to Volokh, Reynolds, Kos, Sullivan, and the rest, but . . . not bad! Thanks so much to all readers and bloggers, these past four years.
If you read and enjoy MOJ . . . tell your friends!
I've had no response, from blogger or reader, to my earlier post asking if anyone tries, under Catholic thought, to justify the death penalty for a non-homicide crime (including the horrific crime of child rape, the issue now before the Supreme Court in a case involving a man's rape of his stepdaughter). It may be simply that no one was moved to respond, but I'll posit that it's because there is no cognizable justification for execution in such a case: that is, that even if one rejects John Paul II's "imprisonment is enough to protect society" argument and finds the death penalty could be appropriate in some cases as a matter of redressing the disorder caused the offense, taking a life by execution cannot be appropriate redress for a crime that does not involve the taking of a life. But there must be some Catholic legislators voting for these laws in the four states that have enacted them since 1997, and some Catholic prosecutors involved in the two Louisiana cases (including the one before the SCT) in which death sentences were imposed.
Tom
Our local paper recently printed a story about this development in health care. I wonder how much these professionals charge?
A growing number of researchers think that forgiveness -- a virtue embraced by almost every religious tradition as a balm for the soul -- might be medicine for the body, as well. In less than a decade, those preaching and studying forgiveness have amassed an impressive slate of findings on its possible health benefits.
They have shown that "forgiveness interventions" -- often just a couple of short sessions in which the wounded are guided toward positive feelings for an offender -- can improve cardiovascular function, diminish chronic pain, relieve depression and boost quality of life among the very ill.
. . . ."It's a skill that can be taught," said psychologist Fred Luskin, director of Stanford University's Forgiveness Projects and a leading researcher in the field who teaches groups, many of them bound together in the workplace, to forgive offenses large and small.
Two very interesting-sounding articles have been posted to SSRN by Dov Fox, a Yale J.D. candidate. Here are the abstracts and links:
The Illiberality of Liberal Eugenics:
Abstract:
This essay evaluates the moral logic of "liberal eugenics": the ideal of genetic control which leaves decisions about what sort of people to produce in the hands of individual parents, absent government intervention. I argue that liberal eugenics cannot be justified on the basis of the underlying liberal theory which inspires it. I introduce an alternative to Rawls's social primary goods that might be called natural primary goods: hereditable mental and physical capacities and dispositions that are valued across a range of projects and pursuits. I suggest that reproductive genetic biotechnologies like embryo selection, cellular surgery, and genetic engineering, which aim to enhance `general purpose' traits in offspring are less like childrearing practices a liberal government leaves to the discretion of parents than like practices the state makes compulsory. I argue that if the liberal commitment to autonomy is important enough for the state to mandate childrearing practices such as health care and basic education, that very same interest is important enough for the state to mandate safe, effective, and functionally integrated genetic practices that act on analogous all-purpose traits such as resistance to disease and general cognitive functioning. I conclude that the liberal case for compulsory eugenics is a reductio against liberal theory.
and Silver Spoons and Golden Genes: Genetic Engineering and the Egalitarian Ethos:
Abstract:
This Article considers the moral and legal status of practices that aim to modify traits in human offspring. As advancements in reproductive biotechnology give parents greater power to shape the genetic constitution of their children, an emerging school of legal scholars has ushered in a privatized paradigm of genetic control. Commentators defend a constitutionally protected right to prenatal engineering by appeal to the significance of procreative liberty and the promise of producing future generations who are more likely to have their lives go well. This 'new eugenics,' however, confronts us with ethical challenges that neither liberal arguments about autonomy, fairness, and consent, nor utilitarian arguments about preferences, happiness, and equality, are able to capture.
I begin by analyzing the Supreme Court's modern substantive due process jurisprudence, as it bears on recent advancements and controversies in genetic science. After developing a doctrinal framework that could support an asserted right to genetic engineering, I draw on empirical research in behavioral psychology to examine the influence of eugenic norms on egalitarian attitudes and institutions. I predict that if parents become accustomed to choosing the genes of their children, it would be radically more difficult to give an influential account for why the successful should adopt a charitable posture toward those who are less fortunate. I argue that by shifting control over offspring DNA from chance to choice, enhancement will inflate a sense of individual entitlement for social and economic outcomes.
I conclude that increasing willingness to prevent the birth of abnormal children distracts attention from institutions that fail to accommodate the limitations of imperfect people. Some may reply that producing people who better fit the roles society chooses to reward need not deter us from providing for people whose abilities fail to meet the demands of modern society. However, this reply misses the way that changes in reproductive practices can bring about changes in the way that we understand our identities and relationships. Eugenic solutions to social problems such as poverty, crime, and unemployment reshape the challenge of genetic disadvantage so that it is no longer one we address through collective measures such as public education, social services, and income redistribution, and instead becomes one for individual parents to prevent through donor screening, embryo discard, or selective abortion.
With the lack of political will for a national solution, more states are adopting ever more strict immigration legislation, targeting those illegally here and those who interact with the undocumented. Some of these laws pose potential threats to the sacramental, pastoral, and social life of the Church. And, some of these laws may be unjust towards the objects of the legislation. For these reasons, bishops and other church leaders have spoken out against these laws.
In an opinion essay printed in the February 2008 First Things (subscription required), I critique the responses of Archbishop Beltran (Oklahoma City) and Bishop Slattery (Tulsa) to severe immigration legislation adopted last year in Oklahoma. With the immigration issue, the Church has the opportunity to engage its own members and the broader culture with a rich and nuanced tradition. It also has the opportunity to educate its own community and the broader culture as to the proper place of the Church in the broader society and the limits properly placed on attempts by the state to control and direct the Church. My critique of Archbishop Beltran and Bishop Slattery is meant as constructive not only for them but for all bishops facing similar circumstances. With limited staff working in extraordinary circumstances, they have responded admirably. As we go forward, I hope all bishops build upon their foundation.
I welcome your thoughts on my essay.
A belated note of gratitude to John Breen, Bob Cochran, and the other organizers of the Law Professors' Christian Fellowship, which convened this past Saturday in New York. There was way too much intriguing content throughout the day to comment on in a single post, so I'll highlight one of the talks.
Harvard law prof Bill Stuntz set out a Christian perspective on the American criminal justice system. He used to believe that the core problem with American law is that it is not sufficiently grounded in moral truth. Now he believes the problem is its severity. He cited a litany of depressing statistics, including the increase of our prison population from 300,000 in 1970 to 2.2 million today. American Christians, he believes, are partially responsible for the current state of affairs, not just because of the stances we've taken, but because of the issues we have neglected and the political alliances we've made. We've gone off-track, in his view, by being too optimistic about what the law can accomplish and by underrating the importance of mercy.
I'd like to hear more from Prof. Stuntz about whether mercy is a quality capable of implementation as national policy, as opposed to a disposition of individual actors within the criminal justice system. (Is he advocating for laws that are merciful, or for laws that are less severe? Is there a difference?) There was much to ponder in his presentation, and I'm hoping it finds its way into published form soon. It deserves a wide audience.
There was a strong showing by MoJ-ers, both at the podium (Michael S.) and in the audience, so I'll let others chime in with their reactions to the day's events.
Monday, January 7, 2008
Having segued from what began as a dialogue among Eduardo Peñalver (here and here), Rick Garnett (here and here), and I (here and here) about the virtues or vices of suburban growth through the poignant queries by Michael Scaperlanda (here and here) about whether the New Urbanism will be available primarily to the affluent into a very interesting (at least to me) discussion about whether a walkable human settlement should be understood as a moral imperative outlined by Professor Philip Bess (as kindly posted here by Rick Garnett), the various messages already posted below and linked above offer readers of the Mirror of Justice diverse perspectives on these questions. I will not directly continue those parts of the thread. I appreciate Professor Bess’s generosity of time and spirit in responding (here) to my last post (here), on which he as a well-spoken expert in the field deserves the last word.
In this post, I want to turn the discussion toward our actual experiences and what they may say about whether we truly do appreciate the Urban Transect or the walkable settlement as an ideal, much less a rule. Have the members of the virtual community on the Mirror of Justice been drawn toward communities that allow walking to work? Or instead have we accepted, or perhaps even preferred, the demographic pattern of post-World War II America which has seen a geographic separation between home and workplace?
While no one leaves the private practice of law for the legal academy to become wealthy, law professors certainly enjoy a higher level of income than the substantial majority of our fellow citizens. If there are economic obstacles to urban versus suburban living, we generally ought to be able to overcome those financial hurdles if we so choose (including choosing to make it a priority in our spending decisions). In any event, the question of the moment is not urban versus suburban (as urban dwelling does not necessarily, or even usually, bring people within a ten minute walk to the office), but rather walkable proximity to place of employment.
So I wonder what proportion (I know there are some) of our fellow bloggers live within a five- to ten-minute walk of their law school offices? And, among the law professoriate in general, what percentage do you suppose would be able to walk from home to law school within ten minutes? Of those who are able to make the commute on foot within ten minutes, how many have children who are still in the home (or, better-stated, not yet adults)? As a follow-up question, that may cut even closer to the quick, even among those who are able to walk to work in ten minutes, how many do so on a regular, rather than occasional, basis (defining regular as, say, at least two times a week in all seasons)? And, if not, why not?
Although I’ve lived in more or less urban settings throughout my adult life, I’ve never lived within a ten minute walk (or even a ten minute bus or subway ride) of any of my urban places of employment. However, I did grow up in small towns or cities, so I do have some personal experience with the walkable human settlement (at least in theory). For example, I graduated from high school in Dillon, Montana, where it was indeed possible to walk from one side of town to another in about fifteen, if not ten, minutes. Like most other kids, I did walk to school. But, while physically possible for most, few people walked to work. The elderly were least likely to be walking the streets and sidwalks. And none of us were trudging through the Montana snows to the grocery store in the winter, or lugging home bags of groceries along the sidewalks even during milder weather. Was it a “walkable settlement”? Yes. As a practical matter did people actually walk to most of the daily amenities of life? That's is not my recollection. Was human flourishing truly dependent on walking everywhere for everything, even when possible?
The old “Field of Dreams” line went that "if you build they will come." If we build the walkable human settlement, will most people come? And if they do, will they really walk? And does it really matter, on a moral level?
(I acknowledge that walkability may matter on the level of human health, as only the kindness of my co-bloggers has caused them thus far to resist remarking on how the roundness of my body shape suggests that I could do with more walking in my life. In that sense, the use of the term "exercise" in my title to this post may be more than a pun. I take some comfort in the fact that our Angelic Doctor, St. Thomas Aquinas, whose approach to natural law has been central to our prior discussions and whose particular views on cities were quoted by Rick earlier, was not known in his time to be svelte. While human health is part of flourishing and thus has a moral dimension, I think that factor alone cannot justify elevating living within walking proximity of one's place of work to a moral imperative.)
Greg Sisk
A few days ago, Michael P. posted best wishes to me and to the Society of Jesus as the Thirty-fifth General Congregation of the order was about to convene in Rome. I am grateful to Michael for his wishes and for the prayers of all those who have the interests of the Society in mind.
This morning the General Congregation convened, and the first matter at hand was the celebration of Mass at which His Eminence Franc Cardinal Rodé, C.M., Prefect of the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life. The Cardinal is no stranger to religious orders in that he himself is a member of the Congregation for Missions, aka the Vincentians.
Cardinal Rodé began his homily by pointing out the significance of the election of the new Superior General who will replace Fr. Peter Hans Kolvenbach. Under the law of the Society, Superiors General serve for life; however, Fr. Kolvenbach has requested and was granted a dispensation permitting him to step down.
The Cardinal then offered this observation:
This Congregation also gathers together to treat important and very difficult matters which touch all members of the Society, such as the direction which the Society is presently taking. The themes upon which the General Congregation will reflect have to do with basic elements for the life of the Society. Certainly you will deal with the identity of today’s Jesuit, on the meaning and value of the vow of obedience to the Holy Father which has always defined your religious family, the mission of the Society in the context of globalization and marginalization, community life, apostolic obedience, vocation recruitment and other important themes.
The Cardinal also noted that the impact of the Society’s work extends beyond its own territory. As he said,
It is not only for your own Jesuit brothers that you provide a religious and apostolic formation. There are many institutes of Consecrated Life who, following an Ignatian spirituality, pay attention to your choices; there are many future priests in your Colleges and Universities who are preparing for their ministry. There are many peoples from both within and outside the Church who frequent your centers of learning seeking a response to the challenges which science, technology and globalization pose to humanity, to the Church, and to the faith, with the hope of receiving a formation which will make it possible for them to construct a world of truth and freedom, of justice and peace. Your work must be eminently apostolic with a universal human, ecclesial and evangelical fullness. It must always be carried out in the light of your Charism, in such a way that the growing participation of laity in your activities does not obscure your identity but rather enriches it with the collaboration of those who, coming from other cultures, share your style and your objectives.
The Cardinal referred to himself as “a brother who is following your works with great interest and expectation…” He then indicated that he wished to share his “joys and hopes” and his “sorrows and anguish” regarding apostolic service through religious life. In this context, he said of the Society,
The authenticity of religious life is characterized by the following of Christ and by the exclusive consecration to Him and to his Kingdom through the profession of the evangelical counsels. The Second Vatican Ecumenical Council teaches that “this consecration will be the more perfect, in as much as the indissoluble bond of the union of Christ and His bride, the Church, is represented by firm and more stable bonds” (Lumen Gentium, N. 44) Consecration to service to Christ cannot be separated from consecration to service to the Church. Ignatius and his first companions considered it thus when they wrote the Formula of your Institute in which the essence of your charism is spelled out: “To serve the Lord and his Spouse the Church under the Roman Pontiff” (Julius III, Formula I). It is with sorrow and anxiety that I see that the sentire cum ecclesia of which your founder frequently spoke is diminishing even in some members of religious families. The Church is waiting for a light from you to restore the sensus Ecclesiae.
The Cardinal was not reticent to express melancholy about a sentiment present today amongst some members of religious institutes:
With sadness and anxiety I also see a growing distancing from the Hierarchy. The Ignatian spirituality of apostolic service “under the Roman Pontiff” does not allow for this separation. In the Constitutions which he left you, Ignatius wanted to truly shape your mind and in the book of the [Spiritual] Exercises (n 353) he wrote “we must always keep our mind prepared and quick to obey the true Spouse of Christ and our Holy Mother, the Hierarchical Church”. Religious obedience can be understood only as obedience in love. The fundamental nucleus of Ignatian spirituality consists in uniting the love for God with love for the hierarchical Church. Your XXXIII Congregation once again took up this characteristic of obedience declaring that “the Society reaffirms in a spirit of faith the traditional bond of love and of service which unites it to the Roman Pontiff.”
But he noted that there is an antidote to this problematic sentiment—apostolic zeal based on fidelity to scripture and tradition. As he exhorted the Congregation,
Times have changed and the Church must today confront new and urgent necessities, I will mention one, which in my judgment is urgent today and is at the same time complex and I propose it for your consideration. It is the need to present to the faithful and to the world the authentic truth revealed in Scripture and Tradition. The doctrinal diversity of those who at all levels, by vocation and mission are called to announce the Kingdom of truth and love, disorients the faithful and leads to a relativism without limits. There is one truth, even though it can always be more deeply known. It is the “living teaching office of the Church, whose authority is exercised in the name of Jesus Christ” (Dei Verbum, N. 10) which is the voucher for revealed truth. The exegetes and theological scholars are involved in working together “under the watchful care of the sacred teaching office of the Church, to an exploration and exposition of the divine writings” (Dei Verbum, N. 23). Through your long and solid formation, your centers of research, your teaching in the philosophical-theological-biblical fields you are in a privileged position to carry out this difficult mission. Carry it out with study and in-depth examination, carry it out with humility, carry it out with faith in the Church, carry it out with love for the Church.
Cardinal Rodé also addressed the duties associated with evangelization, a topic I recently addressed in several of my December postings but specifically including this one [HERE]. He emphasized his concerns for the growing separation between faith and culture, which impedes evangelization. He pointed out that the Society has been well disposed in the past to breach this partition. As he stated,
A culture immersed with a true Christian spirit is an instrument which fosters the spreading of the Gospel, faith in God the Creator of the heavens and of the earth. The Tradition of the Society, from the first beginnings of the Roman College always placed itself at the crossroads between Church and society, between faith and culture, between religion and secularism. Recover these avant-garde positions which are so necessary to transmit the eternal truth to today’s world, in today’s language. Do not abandon this challenge. We know the task is difficult, uncomfortable and risky, and at times little appreciated and even misunderstood, but it is a necessary task for the Church. The apostolic tasks demanded of you by the Church are many and very diverse, but all have a common denominator: the instrument which carries them out, according to an Ignatian phrase must be an instrument united to God. It is the Ignatian echo to the Gospel proclaimed today: I am the vine, you are the branches. He who remains in me and I in him will bear much fruit (John, 15:5).
He ended his homily with this exhortation: “The Lord has chosen you to go and bear fruit, fruit that lasts. Go, bear fruit confident that ‘all that you ask the Father in my name, He will give you.’ (John, 15:16).” I am confident that many Jesuits will take the Prefect’s exhortation to heart and mind and translate it into their individual and corporate apostolic zeal. I pray that God grant me the grace to join them in this work to which the Society has been called. Again, I thank Michael for his kind expression of prayerful best wishes. RJA sj
Think how much more frustrating that must be if you're the Pope. I found this rather poignant.
I wonder if that Animal Law section that was being proposed at the AALS managed to get itself organized. If so, maybe some day Benedict could present the CLT perspective at one of its panels?
Sunday, January 6, 2008
MOJ-friend Philip Bess sends in the following, in response to Greg's recent post, and as part of our ongoing conversation on suburbs, growth, and the like (Greg? Others?):
My thanks to Greg Sisk for his kind words and thoughtful response to
my reflections upon urban design and natural law; and also to my
friend and colleague Rick Garnett for originally bringing these
reflections to Professor Sisk's attention. . . .By way of explanation at the outset, I should mention
that the monograph link that Rick provided to Professor Sisk was a
draft that underwent subsequent development prior to its eventual
publication last year in my book Till We Have Built Jerusalem. The
argument published there is essentially the same as the one to which
Professor Sisk was responding, except that the key proposition /
hypothesis that in the former draft was stated as "Human beings
should make settlements in accordance with the Urban Transect" (and
that was stated this way in the link Rick provided to MOJ), was
restated in the published essay as "Human beings should make mixed-
use walkable settlements." I reformulated the proposition primarily
because the newer phrasing is a simpler way to state the general
principle, but also because there seems to be a great deal of
controversy and confusion among lay people about the nature of and
the claims to be made for the idea of the Rural-to-Urban Transect.
Better therefore, I have come to think, not to confuse matters at the
outset by focusing upon the Transect per se as a possible natural law
precept, and instead to use the simpler revised formulation.
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