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.

Monday, July 23, 2007

An "abortion quandary"

In this piece, from the Chicago Tribune, the author discusses the Democrats' "abortion quandary."  Here are some snippets:

In sometimes subtle ways, Democratic Party leaders and political professionals are grappling with how to address abortion, an internal debate that turns on questions of emphasis, political positioning and how far to go in accepting as a public-policy goal the view that abortion is a moral tragedy to be avoided.

While there is no serious discussion of moving away from the party's long-standing support of abortion rights, some moderates have pressed the party to more aggressively press a message that Democrats would work to reduce the number of abortions. But the party's pro-abortion-rights constituency is wary of too strong an identification of abortion as a social ill, fearing that would provide political momentum for legal restrictions. . . .

It is a quandary, indeed.  If party party leaders and candidates agonize about even acknowledging that abortion is a "social ill", or a "moral tragedy to be avoided", then is there any hope at all for a place in the party's policy-conversation for "seamless garment" types, or even run-of-the-mill "troubled-but-pro-abortion-rights" Americans?

Harry Potter and the Deeper Magic

Three of four members of our household have now read Harry Potter and the Deathly Hallows -- and that was with a late start, not getting out of the checkout line at the bookstore party until 2 a.m. Saturday.  No spoilers in this post.  But if you're ready to be told a lot, Christianity Today's review catalogs the ways in which the book presents (almost always symbolically) themes that are deeply Christian, most notably the power of sacrificial love.  The review's conclusion:

When C.S. Lewis started out to write The Lion, the Witch, and the Wardrobe, he didn't have Christianity in mind. "Some people seem to think that I began by asking myself how I could say something abut Christianity to children; then fixed on the fairy tales as an instrument, then collect information about child psychology and decided what age group I'd write for; then drew up a list of basic Christian truths and hammered out 'allegories' to embody them," Lewis once wrote. "This is all pure moonshine. I couldn't write in that way at all."

"Everything began with images," Lewis continued. "A faun carrying an umbrella, a queen on a sled, a magnificent lion. At first there wasn't anything Christian about them. That element pushed itself in of its own accord."

Something similar seems to have happened to J.K. Rowling. She began writing about wizards and quidditch and Bertie Botts Every Flavor Beans, and somewhere along the way, Christ began to whisper into the story.

Tom

Orthodox Paradox

In yesterday's New York Times Magazine, Noah Feldman has a wonderful essay about identity, belonging, and community.  His starting point is his own experience being excluded from the official newsletters -- even erased from the photographs -- of the yeshiva day school he attended for twelve years because he married someone who is not Jewish.  I have not experienced that sort of exclusion, but he did capture some of the disorientation I feel as an evangelical-turned-Catholic, a feeling that I don't completely escape in the evangelical or Catholic circles in which I now operate, I confess.  Feldman writes: "It is more than a little strange, feeling fully engaged with a way of seeing the world but also, at the same time, feeling so far from it."  You can (and should) read the whole essay here.

Raz on Law & Morality

Joseph Raz's paper, Incorporation by Law, was published in 2004, but it has just now been made available online.  When you're Joseph Raz, you don't need to provide an abstract, so here is an excerpt from the introduction:

My purpose here is to examine the question of how the law can be incorporated within morality and how the existence of the law can impinge on our moral rights and duties, a question (or questions) which is a central aspect of the broad question of the relation between law and morality. My conclusions cast doubts on the incorporation thesis, that is, the view that moral principles can become part of the law of the land by incorporation. This way of putting the question is not meant to be neutral. Legal theorists tend to start at the other end. They do not ask how law impinges upon morality, but how morality impinges on the law. It may be natural for legal theorists, being as they are focused on the law, to start with the law and ask what room it makes for morality. I will suggest that this way of conceiving the question of the relations between law and morality has contributed to some important mistakes. A better way of motivating reflection on the relations is to start with morality.

Sunday, July 22, 2007

Maritain on "separation" in America

I came across this today, in Maritain's Man and the State:

Let me say, as the testimony of one who loves this country, that a European who comes to America is struck by the fact that the expression “separation between church and state,” which is in itself a misleading expression, does not have the same meaning here and in Europe. In Europe it means, or it meant, that complete isolation which derives from century-old misunderstandings and struggles, and which has produced most unfortunate results. Here it means, as a matter of fact, together with a refusal to grant any privilege to one religious denomination in preference to others and to have a state-established religion, a distinction between the state and the churches which is compatible with good feeling and mutual cooperation. . . .  There's a historical treasure, the value of which a European is perhaps more prepared to appreciate, because of his own bitter experiences.  Please to God that you keep it carefully, and do not let your concept of separation veer around to the European one.

Title Examination in New Orleans

My colleague, Dan Gibbens, sent me the following:

New Orleans residents are challenged often with the task of tracing home titles back potentially hundreds of years. With a community rich with history stretching back over two centuries, houses have been passed along through generations of family, making it quite difficult to establish ownership.

A New Orleans lawyer sought an FHA loan for a client. He was told the loan would be granted, if he could prove satisfactory title to a parcel of property being offered as collateral. The title to the property dated back to 1803, which took the lawyer three months to track down.

After sending the information to the FHA, he received the following reply: 

(Actual letter): "Upon review of your letter adjoining your client's loan application, we note that the request is supported by an Abstract of Title. While we compliment the able manner in which you have prepared and presented the application, we must point out that you have only cleared title to the proposed collateral property back to 1803. Before final approval can be accorded, it will be necessary to clear the title back to its origin."   

Annoyed, the lawyer responded as follows (actual letter):

"Your letter regarding title in Case No. 189156 has been received. I note that you wish to have title extended further than the 194 years covered by the present application.

I was unaware that any educated person in this country, particularly those working in the property area, would not know that Louisianawas purchased, by the U.S., from Francein 1803, the year of origin identified in our application. For the edification of uninformed FHA bureaucrats, the title to the land prior to U.S. ownership was obtained from France, which had acquired it by Right of Conquest from Spain. The land came into the possession of Spain by Right of Discovery made in the year 1492 by a sea captain named Christopher Columbus, who had been granted the privilege of seeking a new route to India by the Spanish monarch, Isabella. The good queen, Isabella, being a pious woman and almost as careful about titles as the FHA, took the precaution of securing the blessing of the Pope before she sold her jewels to finance Columbus' expedition.  Now the Pope, as I'm sure you may know, is the emissary of Jesus Christ, the Son of God, and God, it is commonly accepted, created this world. Therefore, I believe it is safe to presume that God also made that part of the world called Louisiana. God, therefore, would be the owner of origin and His origins date back, to before the beginning of time, the world as we know it AND the FHA.  I hope you find God's original claim to be satisfactory.  Now, may we have our damn loan?" 

The loan was approved.

Friday, July 20, 2007

An open letter to Dean Bernie Dobranski and Ave Maria Law School’s Board of Governors

This letter is in response to Mark Sargant's posts here and here.

An open letter to Dean Bernie Dobranski and Ave Maria Law School’s Board of Governors

Dear Dean Dobranski and Board of Governors: 

Ave Maria Law School opened with much fanfare and much promise.  This was to be a truly Catholic law school, drawing upon and integrating the great resources of our faith – the intellectual tradition, the liturgy, the moral teachings, the social teachings, etc – for the purpose of forming new lawyers (teaching) and applying universal truths to the legal and political questions of our time (scholarship). 

Less than a decade after its remarkable start, the dream lies tattered, crumbling from within, seemingly failing because of the inability live the Catholic faith - with its emphasis on love, forgiveness, reconciliation, and justice – within the community.  I am sure that there is some blame to share among faculty, administration, and the board for acrimony related to strained relations.  This does not trouble me much because that is just human nature.

The Association of Ave Maria Faculty (“AAMF”) has, however, leveled serious charges against the Dean and by implication the Board, which continues to support the Dean.  According to the AAMF:  “Since the vote of "no confidence" in Dean Dobranski in April 2006 over issues of faculty governance and academic freedom, he has used threats and retaliation to try to silence members of the faculty from voicing concerns about his leadership and that of Mr. Monaghan. A majority of the faculty whom the Dean believes to be disloyal to him have been punished financially and through manipulation of the promotion and tenure system. One tenured faculty member has been repeatedly threatened with termination based upon bizarre allegations. Junior faculty members have been threatened that their careers would be harmed if they associate with disfavored tenured faculty. We have also been informed that Dean Dobranski had instituted a system of monitoring our emails and computers, and student research assistants have been closely questioned about research projects of disfavored faculty members. All tenured faculty members have been removed from the Chairs of faculty committees, and such chairs are now in the control of the few faculty members whom the Dean believes to be loyal to him. Cumulatively, such intimidation and bullying has created an intolerable atmosphere of fear and contempt at our school.”   And, “[t]he Dean has pocketed ballots and stalked out of faculty meetings unilaterally declaring them adjourned.”

These allegations certainly are disturbing.  And, you know, in your hearts, the truth of the matter.  As leaders and stewards of an important Catholic law school, I ask you – I implore you – to meditate on the washing of the feet in Chapter 13 of John’s Gospel.  As leaders of this community, you are called upon to wash the feet of the faculty, alums, students, and other members of the law school community.  You are called to forgive and seek forgiveness.  In short, you are called to love and reconciliation. 

The hour is not too late for you to model for the legal and academic communities the essence of a Catholic Christian law school.  In fact, I would suggest you have a better, clearer opportunity to mirror Christ now than when you first began because the only path left open is through the cross.  It may not be what you had planned, but God works in mysterious ways.  Are you up for the challenge?  Can this be done with the current Dean?  I don’t know?  Dean Dobranski, are you willing to step aside as dean and humbly join the faculty, if that is what it takes to heal this broken community?  Dean and Board, to the extent that you have fallen short, are you now willing to treat the Faculty – as sharers in the law school’s governance – with respect and dignity?  Where you have acted inappropriately, are you willing to humbly ask forgiveness?  Where you feel you have been wronged, are you willing to forgive? 

As lawyers, we are called to participate in the healing of a broken world.  We are called to be Christ to our neighbor (lawyers no longer have the luxury to ask the follow-up, “Who is my neighbor?”)  I pray that as leaders of Ave Maria Law School you have the courage to be Christ, to manifest Christ’s servant leadership, at your broken school.

May God bless you and may the peace of Christ reign in your hearts,

Michael Scaperlanda

Edwards Family Chair in Law

Associate Dean for Research

University of

Oklahoma

College

of Law

An Evangelical Declaration Against Torture

In the "back of the book" of the August 2007 First Things, Fr. Neuhaus notes and discusses this document, "An Evangelical Declaration Against Torture:  Protecting Human Rights in an Age of Terror."  He calls attention to this passage in particular, which seems worth emphasizing:

When torture is employed by a state, that act communicates to the world and to one’s own people that human lives are not sacred, that they are not reflections of the Creator, that they are expendable, exploitable, and disposable, and that their intrinsic value can be overridden by utilitarian arguments that trump that value.  These are claims that no one who confesses Christ as Lord can accept.

It is striking, by the way, how freely and openly this "Evangelical" declaration makes use of Catholic human-rights works and teachings.

More on the Barna study, Catholics, etc.

There's a lively discussion going on, around the blogosphere (or is it "blogsphere") about the new Barna study of American Catholics.  (Click here for J. Peter Nixon's helpful Commonweal post.  And, click here for a relevant, recent John Allen column on assimilation and distinctiveness.)  A very thoughtful former student of mine -- who, as it happens, came into full communion with the Catholic Church from an Evangelical background -- sent me some thoughts, and kindly permitted me to blog them:

. . .  It's hard to tell what Catholics are being compared to.  At
>one moment Catholics are compared to "people aligned with other faith
>groups," but at others they are being compared to "other Americans."
>
>Insofar as the study seeks to compare Catholics to "other Americans,"
>I think it is important to recognize that non-active Catholics are
>almost certain to identifying themselves as Catholic, but
>non-active Evangelicals are likely to consider themselves *former*
>Evangelicals (as part of their heritage from the Radical Reformation -
>only the true believers are part of the church).  I would be more
>interested in studying the results of a survey comparing the
>attitudes, beliefs, and practices of active Cathoilcs to society at
>large.
>
>In so far as Barna wants to judge what portion of Catholics are "real
>Christians," it concerns me that some of the metrics he uses pertain
>more to Evangelicals more than to Catholics.  For example, Barna
>defines "active faith" as reading the Bible, praying,
>and attending a church service during the prior week.  But, it seems
>to me that someone might have an active Catholic faith even if he
>didn't pick up a Bible during the past week.  Did Barna ask whether
>that person had prayed the rosary during the week, attended mass other
>than on Sunday, or read Bible *passages* during the prior week (a
>Catholic could, for example, read Scripture in a lectionary or in the
>liturgy of the hours)?
>
>One more example: Barna determined whether Catholics are "born again"
>based on whether they have made a "personal commitment to Jesus Christ
>that is still important in their life today" and who said that "they
>believe that when they die they will go to Heaven *because* they had
>confessed their sins and accepted Jesus Christ as their savior."  But
>these are almost exclusively Evangelical categories that ignore the
>traditional Christian faith.
>
>Catholics don't generally use the term "born again."  But a Catholic
>would respond when asked that he was born again not "at the hour I
>first believed," but at his baptism.  Only once does Christ in the
>Gospels talk about the necessity of being "born again."  And there
>Christ requires not that someone strike up a personal relationship
>with him, but being born of water and the spirit, a clear reference to
>baptism (see http://www.catholic.com/library/Born_Again_in_Baptism.asp).
>
>Again, only an ill-taught Catholic would say that he believes he will
>go to heaven because he had confessed his sins and accepted Jesus
>Christ as his savior.  Catholics, like Calvinists, believe that the
>"perseverence of the saints" is very important.  Catholics believe
>that, as Christ taught in the parable of the Prodigal Son, it is
>possible to be our Father in heaven's child, yet forsake our place in
>his family and walk away.  At that point, we are dead to our Father
>until we return to Him, repent, and ask to be restored to forgiveness.
>The father of mercies will never say no, but he also does not forgive
>us until we have decided that we would rather live in our Father's
>home than eat pig slop.
>
>So, in these significant ways, Barna is not measuring how many
>Catholics are dedicated to their faith, but rather how many Catholics
>are dedicated to Evangelicalism.
>
>But, leaving aside these methodological complaints, there is a lot
>that is troubling in this study.  And there certainly is a lot to what
>Barna says about how Catholics have in essence traded their
>distinctiveness for success and acceptance in American society.  It
>saddens me to see that Catholics have lost their "saltiness" in so
>many ways.  These statistics are grim.  But, it should be said, this
>is not news to Catholics.  Many Catholic laypeople, bishops, and
>priests have been making similar observations for decades.
>
>And their analysis differs significantly from Barna's.  Yes, the shift
>from urban blue-collar immigrant communities to middle class suburbia
>has been an imporant one.  But you can't understand what has happened
>to American Catholicism in the past 50 years without looking at
>Vatican II and how it has been received (and abused) in our culture.
>I believe that Vatican II was a great gift to the Church, but too many
>Catholic leaders thought this was their green light to remake the
>Catholic Church in the image of liberal Protestantism.  As a result,
>millions upon millions of Catholics have been deprived the opportunity
>to learn of the beauty of our faith by priests and nuns captive to an
>alien, liberal ideology.  Thank God, things have been getting better
>and better over the past 20 years.  But, the post-conciliar turbulance
>has taken a great toll.
>
>All that said, you asked me not about my reactions to this survey, but
>about my experience since I converted.  I've seen a lot of lethargy
>and complacency among Catholics, both at Notre Dame and in parishes.
>It saddens and amazes me that so many people come to mass and are not
>(so it seems to me) struck between the eyes by the Gospel.  It
>disappoints me that parishes generally lack the roll-up-your-sleeves,
>can-do volunteerism that mark the best Evangelical congregations.  And
>it confounds me that there is such a divergence between what the
>majority of American Catholics believe and what the Catholic Church
>teaches.
>
>That's the downside.  But there is a lot of upside as well.  I have
>met a lot of wonderful people and deep, deep Christians.  There are so
>many great priests, and I am so thankful for the two we have at our
>parish.  I have learned so much - about the Bible, about our Christian
>heritage, and about what it is to be a Christian man, husband, and
>father.  More importantly, I think I've grown a lot, through my
>reading, through Christian fellowship, and through the sacraments.  I
>love being a Catholic.  It is so satisfying to be part of a Church
>that cares deeply about doctrine and about history.  And the spiritual
>resources are endless.  I have no doubts that this is where God has
>called me, and that this is where I will remain.
>
>All the muckedy-muck that Barna writes about the mediocrity of so much
>American Catholicism, it doesn't affect me that much.  And here's an
>important difference between Catholicism and Evangelicalism.  The
>Catholic Church is not a democratic institution.  If the majority of
>Amercan Evangelicals, readers of Christianity Today, professors at
>Gordon-Conwell, or some other Evangelical institution come to believe
>that women can be pastors . . . then that's what Evangelicalism will
>become.  There's no real stopping it.  But the Catholic Church is very
>different in that regard.  The Church itself is unwavering and it is
>strongly counter-cultural.  It is a great failure that so many
>Catholic clergy and laypeople have strayed from the Church's faith.
>But none of that creates any confusion for anyone who cares enough to
>read the Catechism and listen to papal teaching.  And I think that any
>study of committed Catholics would bear that out.  So I find it's
>rather easy to "tune out" all that noise and focus on what's good,
>beautiful, and true.

Thursday, July 19, 2007

Judgment and Inclusiveness

The readings in my Episcopal parish last Sunday included two classic texts for Christian ethical and political thought: Amos's prophetic challenge to the royal temple cult of Israel, followed by the parable of the Good Samaritan.  (As I look at the Catholic lectionary, it seems you may have heard Deuteronomy instead of Amos.)  At The Christian Century's Theolog blog, William Willimon -- a great Methodist preacher -- reflects on the two together, finding the theme of God's judgment not only in Amos (where it's obvious), but in the parable:

We gather in church to be closer to God. But how do we like proximity to a God who loves enough not to pass by but lingers long enough among us to judge us, to hold a higher standard of judgment against us than that by which we measure ourselves? To a God who is not only loving but righteous, and rarely leaves us unscathed? God is no limp projection of ourselves and our felt needs. God wields a sword against our self-righteous presumption, and against our positive self-image slams a disgusting Samaritan who, while not having our theological commitments, embodies those commitments better than we.

In positing that the person who is very much "the other" may embody our best commitments, the Samritan story teaches a lesson of "inclusiveness."  Today that term, a very popular one, is typically set in opposition to judgment: to be inclusive toward people or ideas is to refrain ever from judging them.  But the two come together in the best way at the heart of the Gospel:  One of the most inclusive messages in human history is that we are all sinners, failing to measure to God's plumb line, and thus all in need of salvation and grace, which God in love offers to all.  As Willimon points out, this challenges all of our notions of self-satisfaction and superiority.  But it does so under standards of judgment -- some of which you fail, but some of which, I must always remember, I fail -- and not under a version of inclusiveness that, too frequently these days, reduces to moral relativism or feel-good therapy.

Tom