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, October 10, 2007

Moreland on Taylor and Duffy

By Rick Garnett

MOJ-friend and law-prof Michael Moreland sends in this, responding to my "new books" post:

. . .  I was struck in the Atlantic by Benjamin Schwarz's (a tough critic) evident appreciation for Duffy's work. I bought Marking the Hours earlier this year and have been dipping into it since--it's not the sort of book one need read straight through but can be approached instead almost as devotional literature. Along with The Stripping of the Altars, Voices of Morebath, and The Faith of Our Fathers--his collection of more popular essays from the Tablet and similar places--Duffy has recovered aspects of English Catholic culture that had been almost entirely forgotten and worked a revolution in English Reformation historiography. ( Voices of Morebath, which recounts daily life in a sixteenth century village as seen through the records of the local parish, is fascinating but sometimes a little tedious--a lot of diary entries on sheep shearing, wool production, and the like.) I think of Peter Ackroyd as doing much the same, broadly speaking and in a more popular vein, in his sprawling biographies of More, Shakespeare, Blake, and Dickens.

As for Taylor, the new book has been sitting on my shelf for a few weeks, and, apart from a few hours flipping through it, will probably have to be summer or holiday reading. Like Sources of the Self, it's brilliant, encyclopedic, and rambles among philosophy, theology, politics, art, and literature. For our purposes as lawyers and scholars in the modern university, the book provides an extensive discussion of Taylor's category of "social imaginaries" ("that common understanding which makes possible common practices, and a widely shared sense of legitimacy," p. 172), which was the subject of a shorter book of his a few years ago. There's much grist for the Catholic legal theory mill in taking social imaginaries and other aspects of Taylor's most recent work and applying them to the law. For example, Taylor traces the evolution from a society of "mediated access" to "direct-access," "from a hierarchical order of personalized links to an impersonal egalitarian one; from a vertical world of mediated-access to horizontal direct-access societies." (p. 209). For the modern citizen, Taylor argues, "[m]y fundamental way of belonging to the state is not dependent on, nor mediated by any of these other belongings. I stand, alongside all my fellow citizens, in direct relationship to the state which is the object of our common allegiance." It seems to me there's much there for the doctrine of church autonomy, the proper characterization of religious belief (both individual and associational) in the law, and the ongoing importance of the principle of subsidiarity in Catholic social doctrine.

Wojda on Advance Directives in PVS

By Elizabeth Schiltz

My colleague Paul Wojda offers this response to the comment on his question on advance directives dealing with the possibility of a PVS:

With respect to interpreting official Church teaching on this issue I think it’s important to recognize a number of trajectories, some of which may be in tension with others. The first and most obvious trajectory is the continued resistance to modern trends that diminish human life. In this light, those who don’t “get” John Paul II’s allocution on nutrition/hydration would do well to look at his (and the U.S. Bishops’) many statements on war and peace, economic justice, capital punishment, and (of course) abortion. In each of these areas Church teaching has been at pains to narrow, if not close entirely, the permissible exceptions to the prohibition against taking life. The increasing emphasis on the public duties of Catholic officials is part of this trajectory too (i.e., not just to always “tolerate” evil but to work to ameliorate threats to human life). All of this has been accentuated by the dyad “culture of life/death” made popular in The Gospel of Life (1995).

The trajectory regarding permissible cessation or foregoing of life-prolonging care is of much older stock, however, and while it operates with an eye to social/political/cultural circumstances, it is far more casuistic and thus person-centered than this first trajectory. Medical decisions must, necessarily, be made in good conscience by the patient herself. And in this tradition it has always been understood that even food and water (or other non-medical forms of care) may be legitimately refused by a person if they are judged—by the patient—to be either excessively burdensome and/or offer little or no hope of benefit. This tradition has proven remarkably supple as our capacity to prolong life has increased, especially so over the last half-century, but its crucial moral feature—that we never directly aim at the death of ourselves or another—is still very much alive, as even Vacco (1997) demonstrates. More importantly, Pius XII in his famous 1957 address to Anaesthesiologists explicitly affirms this “patient-centered” approach: 

“The rights and duties of the doctor are correlative to those of the patient. The doctor, in fact, has no separate or independent right where the patient is concerned. In general he can take action only if the patient explicitly or implicitly, directly or indirectly, gives him permission. The technique of resuscitation which concerns us here does not contain anything immoral in itself. Therefore the patient, if he were capable of making a personal decision, could lawfully use it and, consequently, give the doctor permission to use it. On the other hand, since these forms of treatment go beyond the ordinary means to which one is bound, it cannot be held that there is an obligation to use them nor, consequently, that one is bound to give the doctor permission to use them.”

There are obviously other factors involved besides the patient’s right to make health care decisions, but the principle is clear.

Thus my original question (now rephrased in light of your comments): can I know in advance (with moral, not mathematical certainty), and stipulate with the necessary clarity, that certain forms of care (medical and otherwise) would be excessively burdensome and/or offer no reasonable hope of benefit, and that therefore I would wish them to be discontinued? 

I think the answer is plainly yes, on both counts, and I think that a reliable medical diagnosis of PVS after one year of artificially administered food and water (in the medically verified instance of an inability to swallow) is such a situation. How rare or exceptional these situations might be is a matter for further debate. (Anecdotal evidence suggests that many if not most Catholics would deem MANH to offer no reasonable benefit in this scenario. Indeed, most people I talk to at parishes etc. are rather frightened—not to mention monumentally confused—at what they hear the Church telling them: that they are obliged under pain of mortal sin to maintain MANH if in a PVS, no matter how long.)

My concern is that this trajectory of principled casuistry is being lost amidst the trajectory of (necessary) public witness to the dignity of human life in the mode of cultural critique. In our necessary opposition to euthanasia and physician-assisted suicide we must also preserve and develop the practice of a charitable reason that is grounded, in these matters, in the awareness that while life is an obligation it is because it is first a gift.

Quick thought on "red" and "blue" families

By Rick Garnett

With respect to the piece, to which Tom linked, on "red" and "blue" families, a few quick thoughts:

First, their "red" v. "blue" taxonomy seems (shockingly) simplistic.  If they mean "families in blue states" and "families in red states", then they are (obviously) overlooking the diversity (in politics, as well as family situation) in red and blue states alike.  (There are "new system" families aplenty in downtown Atlanta and Phoenix, and there are old-school, traditional families aplenty in Minnesota and Pennsylvania.)  Next, we are also overlooking -- and, I appreciate that this is a delicate point, but it is an important one -- the extent to which a third situation (which, we might think, is at *least* as prevalent in "blue states" as in "red states") of familes consisting of poor, unmarried women and children with non-involved (perhaps multiple) fathers. 

The claim that "blue familes" are "prosper[ing]", then, has to ignore these third-situation families in blue states, and also rests -- I assume -- on contestible notions of what counts as "prospering."  Similarly, the claim that "red families" are struggling, even on their own terms, is certainly true in many cases, but I have a hard time believing it is any more true than the claim that "blue families are prospering."

Now, all that said, it *should* be a matter of great concern -- to policymakers and theologians alike -- that, in those states where professed religiosity is high, and professed adherence to "traditional" morality is high, we nonetheless see a great deal of divorce, etc.  But the "red" and "blue" thing seems like a self-congratulatory gimmick.

Tuesday, October 9, 2007

"Red Families vs. Blue Families"

By Thomas Berg

At SSRN, GW Law's Naomi Cahn and UMKC Law's June Carbone post an abstract including this excerpt:

This Article argues that two different family systems underlie the increasing political polarization in the United States. Each system has developed its own legal structure, moral imperatives, and expectations of the state. In blue states, what we term the “new middle class morality” seeks to realize the promise of the post-industrial economy through investment in the workforce participation of both women and men. The hallmark of the new system is marriage and childbearing at later ages, with greater autonomy, more egalitarian gender roles, and reduced fertility for those who postpone family formation into their late twenties and beyond.

By contrast, the red states, which correspond to the “moral value” vote in the 2004 Presidential election, affirm more traditional understandings that celebrate the unity of sex, marriage and procreation. Driven in part by religious teachings about sin and guilt, they emphasize abstinence, and see divorce and single parenthood as moral failings. While blue families have prospered, red families are in crisis on their own terms –- red states have the nation's highest teen pregnancy and divorce rates, and the growing separation between the beginning of sexual activity and marriage makes abstinence increasingly untenable.

Does the last sentence of the second paragraph state the empirical situation fairly?  If so, how should Catholic legal theory respond?

Tom B.

Give me a break!

By Michael Perry

In response to Kenneth Slattery, C.M. (here), who is no doubt a good man, those of who who believe that contraceptive intercourse is *not* immoral are at least--at least!--as warranted in calling those who believe that contraceptive intercourse is immoral "invincibly ignorant" as Kenneth Slattery is in calling us invincibly ignorant.  My God, why can't we just accept that there is room for reasonable disagreement here?

Thoughts on "Respect Life Sunday"

By Rick Garnett

On behalf of the Social Justice Commission of my parish, I wrote a few paragraphs for the cover of our weekly bulletin this past Sunday, "Respect Life Sunday":

For the last 35 years, the Catholic bishops in the United States have used the first Sunday in October to remind us that we are called to embrace and proclaim the Gospel of Life.

Luke’s Gospel includes the beautiful story of Mary’s visit to her cousin Elizabeth, who was pregnant with her son, John.  At the very sound of Mary’s greeting, Elizabeth tells her, “the infant in my womb leaped for joy” (Luke 1:44).  On this Respect Life Sunday, we are invited to reflect on Elizabeth’s awe in the presence of the unborn Christ and challenged to consider the many ways in which our society fails to follow her example.

At the heart of Catholic social teaching is the unshakeable conviction every human person is sacred, loved by God, and made in His image.  When the dignity of human life – and, in particular, of the most vulnerable among us – is threatened or violated, true justice and peace are not possible.  As Pope John Paul II wrote, in The Gospel of Life, “[o]nly respect for life can be the foundation and guarantee of the most precious and essential goods of society, such as democracy and peace.”  Indeed, this same truth is recognized in the Preamble to the United Nations Convention on the Rights of the Child:  The “recognition of the inherent dignity and equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”

As we pray for a just peace in the world and in our community, we should consider Mother Theresa’s observation that “the greatest destroyer of peace today is abortion.”  After all, she said, “[a]ny country that accepts abortion, is not teaching its people to love, but to use any violence to get what it wants.”  Similarly, Pope Benedict has noted that “alongside the victims of armed conflicts, terrorism and the different forms of violence, there are the silent deaths caused by hunger, abortion, experimentation on human embryos and euthanasia.  Abortion and embryonic experimentation constitute a direct denial of that attitude of acceptance of others which is indispensable for establishing lasting relationships of peace.”

          The Gospel of Life is not always easy to proclaim, and it is often hard to hear.  To be unconditionally and comprehensively pro-life, to think of human persons in terms of their God-given dignity and not merely their supposed “value” to society is sometimes unpopular and uncomfortable.  Still, our Christian vocation as People of Life makes demands on us, not only in our personal lives but also in the public arena of politics and policy.  And, it poses to us the question:  Will we, like Elizabeth, regard the gift and mystery of human life – in the womb, in the wheelchair, in the sick-bed, in the prison cell – with welcoming joy?

New books of interest

By Rick Garnett

While flying back today from lovely Harrisburg, PA (the whole town smells like chocolate!), flipping through The Atlantic, I came across two books that looked really interesting.  First, there's Eamon Duffy's new work, "Marking the Hours:  English People and Their Prayers, 1240-1570."  Duffy apparently extracts great riches from the marginalia in the prayer books of pre-suppression England.  In fact, he works with the actual copy of the prayer book that St. Thomas More used, and wrote in, while awaiting his death.  I thought Duffy's "Stripping of the Altars" was one of the best non-fiction books I've ever read, so I'm looking forward to "Marking the Hours."

Next up is Charles Taylor's "A Secular Age."  'Nuff said.

If any MOJ readers have already jumped into these books, I'd welcome impressions and reviews.

Natural Law

By Susan Stabile

My friend Kenneth Slattery, C.M., a Vincentian at St. John's University in New York, offers these thoughts on the exchange between Robert Araujo and Rob Vischer (see here, here and here):

"God has a plan for all creation and, of course, the human person fits into that plan.  God's plan for us is natural law, which is imbedded in our nature and discoverable in our nature.  The intellect does the discovering: it discerns what we are and, therefore, how we ought to act.  Natural law governs all human conduct and that includes activity in the political arena.  Pope Benedict wisely reminds us that natural law must underlie life in a democracy; natural law must govern all political activity.  Indeed, it is also noted that not all natural law truths are equally knowable.  Murder is clearly a grave moral evil.  No one can miss that.  On the other hand, a person may be invincibly ignorant of the fact that contraceptive intercourse is immoral.  Certainly, it is the task of the Church and philosophy to elucidate remote conclusions of the natural law."

Still more on St. Thomas and Abp. Tutu

By Rick Garnett

For starters, thanks to Tom for his thoughtful response to my questions about the St. Thomas faculty statement.  His answer to my question, "how offensive is too offensive?" -- i.e., "I think at least a major criterion is a judgment whether the speaker is engaged in a good-faith expression of a moral or intellectual position or simply a malicious attack on a person or group" -- strikes me as quite sensible.

Thanks also to Rob for his thoughts.  It sounds reasonable to me to say that no "speaker engaged in the search for truth should be categorically excluded from a Catholic university based on the offensiveness of his speech[,]" with (perhaps) the caveat that the "offensiveness" of the speech is likely, in some cases, to constitute good evidence that the speaker is not, in fact, "engaged in the search for truth."  (Do you disagree, Rob?).  But, that said, how do we know -- as Rob puts it -- that Holocaust deniers are not engaged in the search for truth?  Is this just another way of saying that what Holocaust deniers say is not only offensive, but wrong (or, so wrong as to be offensive)?  How do we identify those offensive speakers who are seeking the truth, and distinguish them from those who are not?

And, I agree entirely with Lisa that "we need to think about how we, as universities, can constructively foster dialogue and debate, rather than simply providing platforms for assertions of positions on divisive issues."

Finally, it was clear, I believe, in my post that I was not asserting or concluding that, at the end of the day, Archbishop Tutu should not have been included in the program at St. Thomas.  What I wanted to do was to raise some questions about the translatability (not a good word, I know) of standard, "marketplace of ideas" / New York Times v. Sullivan / "speech always trumps offense-harm" arguments into the Catholic university context.  I did not, with all respect to Teresa, contend, or even "suggest", that "no one who is in disagreement with any aspect of the Truth taught by the Catholic Church can be invited to speak, even on issues in which they are in complete agreement with the Church and from which their fame derives, at least without some denunciation of the speaker's incidental false views."  Here, just to be clear, is what I wrote:

Also -- and I intend this as a serious, good-faith question:  Given Tutu's regrettable failure to understand well, and speak clearly about, the immorality of abortion, do those who signed the statement think that a Catholic university that welcomed Tutu to speak about peace-making should -- given the celebrity, and near-saint, status he enjoys, particularly with students -- do something (anything?) to identify his unfortunate blind-spot on abortion?  To challenge him?  Should a Catholic university that welcomes (and celebrates, and honors) Tutu have any duty to use his presence as a kind of teaching moment?  (As, for example, Pres. Bollinger did at Columbia.)  To be clear:  I'm not sure what I think about this -- again, I'm all for the rough-and-tumble of free speech -- but I'd appreciate others' thoughts.

I agree with Teresa that the position quoted above (i.e., "no one who is in . . . ") should not be embraced.

Faith, Reason, and Abp. Tutu

By Rob Vischer

My colleague Teresa Collett offers an additional response to Rick's questions regarding our statement about Archbishop Tutu:

This response represents only my views.  I have not asked for, nor received, comments from my colleagues regarding what follows. 

I appreciate the call to faithfulness that underlies your pointed questions regarding the letter signed by law faculty concerning the University's actions on Arbp. Tutu.  However, I believe that you have read the letter through the eyes of the secular academic, rather than through the eyes of a faithful son of the Church, which I know you to be.  Nowhere does the phrase "free speech" appear in the document.  The only reference to secular norms appears in the statement, "[w]e could easily cite secular academic norms as well, for in this case they harmonize with Catholic norms.

The paragraph you cite as creating concern that the signators to the letter have not given adequate thought to the necessity of refusing a platform to those who hold or express offensive views, is not, as you fear, an endorsement of the pernicious idea that a Catholic (or indeed a secular) university is obligated "to give a platform to all speakers, no matter how offensive their views or statements." Rather, I understand the paragraph, and letter as a whole, to affirm only the idea that the University is "to promote dialogue between faith and reason, so that it can be seen more profoundly how faith and reason bear harmonious witness to the unity of all truth." Ex Corde, para. 17 (emphasis in the original).

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