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, May 11, 2007

commencement speeches

I have to disagree with Karen Stohr about her take on commencement speeches. She contends that rescinding an invitation means that the school is saying that the speaker can't make a contribution to the communal project of pursuing the truth. I don't think that is what is going on here at all. I think honorary degrees and commencement speeches (usually the speaker is also receiving an honorary degree, at least where we are talking about higher education) send a message about the school's identity. The honor is being bestowed on someone the school thinks it ought to honor. While the honor doesn't necessarily mean that the school endorses everything the person has ever said or done, the choice to honor someone who disagrees with Church teaching on very important issues has the potential to interfere with the clarity of the message that the school ought to be trying to communicate.

The school might think the person had something to contribute to a a discussion of an issue and it might be appropriate to have a debate between Mario Cuomo and Henry Hyde or Judge James Buckley about the role of a public servant. It would be perfectly appropriate for the school to have a debate on infanticide featuring Peter Singer and Robby George or a discussion on liberation theology involving Father Sobrino and Pope Benedict.

But a commencement speech is not a debate. The school is defining itself through these selections and the selection (the honoring) of someone who is in favor of abortion rights communicates either that the school doesn't think there is anything wrong with the person's views or that the error in the person's views isn't terribly important. With regard to the issue of abortion, I think those are the wrong messages to be sending.

Richard M.    

    

France and the Spots in Our Own Eyes

My colleague Greg makes some good points about the economic and social problems of France and the unsustainability of a number of its current practices.  But for me at least, the post loses a lot of credibility by painting things in such black and white terms, dismissing France overall as a "disaster" and suggesting that there is no middle point -- and no case for a middle point -- lying somewhere between where the U.S. and France are now, or learning something from each system.

(Let's set aside the loss of Christian faith, which we can all agree is very bad in spiritual terms.) The France that Greg condemns as a "social disaster" has the problems he identifies, but it also, as compared with the United States, has lower abortion rates, longer life expectancy, lower infant mortality rates, and lower homicide rates.  The relation of a generous social-welfare system to such figures is not 1 to 1, but it is there.  Whatever one says about the costs of the social-welfare system, the benefits that it provides for child-raising -- both for women at home and women in the busainess workplace -- have contributed to a fertility rate that is higher than virtually everywhere else in Europe (and very close to the U.S., bucking the general European trend of low fertility).  A lot of what we save in social welfare spending is eaten up in our much more expensive health-care system.  And while productivity per worker is less in France than in the US, productivity per hour worked is comparable or slightly higher, fitting with the idea that the French accept lower economic performance overall in return for simply working less and having more leisure and family time.  Again, I'm not saying the French approach is right and the US wrong -- and it's likely that their current point on the trade-off curve is not sustainable -- but Greg's post seems not to recognize any conflict of values or considerations here whatsoever.

I think that among the insights Catholic social thought should give us, stemming from the recognition of original sin, is an acknowedgment of the imperfections of all social and economic systems and the inevitable trade-offs between them.  I don't see that in Greg's post; for him, the problems are entirely on one side.  And his curt dismissal of the idea that France might ever make reasonable adjustments in its system toward more productivity and risk -- as e.g. the US, Britain, and some of the Scandinavian countries have done over the years -- strikes me as simple France-bashing.

Finally, Greg's slippery-slope arguments against welfare policies might be valid, but they might not.  The nature of slippery-slope arguments, of course, is that they use the prospect of bad results down the line to prevent you from doing something now that is justified taken alone.  For example, one might say, paralleling Greg's logic, that we should never invade a nation (say, Afghanistan) to respond to an attack on us (like 9-11), because if we do we'll get too sanguine about the idea of war and start, to paraphrase Greg, "careening toward the [moral] and [geo-political] disaster that is [the Iraq War]."  (Gee, maybe that's one instance where the French turned out to have gotten something right.)

Tom

Critical Response to Karen Stohr

Plese cick here to read a critical response to Karen Stohr's op-ed, which I posted yesterday.

Providing Cover

Rick asks:

I hope that there is something more going on, i.e., that the "conservative" themes and implications of CST shape the paths and challenge the plans of those headed in one political direction while the "liberal" themes do the same for those headed in the other direction.  It's not just that First Things and Commonweal -- and their readers -- are exactly where and what they would have been, absent the challenge of CST . . . is it?

I think this is a very interesting question.  It is also relevant to this blog.  From my perspective, one of the very valuable and unusual things about this blog -- unusual even for a legal blog -- is that it includes a true diversity of political and religious viewpoints.  I for one have found it a very challenging blog to read for just that reason, but that challenge has been a welcome one (even if I don't always realize that it's welcome at the moment I'm experiencing something as challenging).   It has certainly forced me to reexamine (and in a few cases, revise) my views on a number of different issues relevant to Catholic legal thought.  To give a concrete example, I think I came to this blog with something very much like the Mario Cuomo view of the abortion issue, and I can say that that, while I know I'm still very far from many of you on the question of the interface between abortion's morality and legality, my views have definitely become more complicated over the past year or so that I've been privileged to participate here.

This isn't really an answer to Rick's question as much as a statement of appreciation for the role of this blog as a counterweight to the increasing tendency (both in society at large and in the academy) to seek out conversation with those who already agree.  It may not be apparent from my postings, but I've definitely grown, both intellectually and spiritually, as a result of this community.

Thursday, May 10, 2007

John Allen on Benedict on Lib. Theo.

John Allen has an interesting discussion of the Pope's views on Liberation Theology.

At the end, he provides this little nugget, which I think we can all agree is great news:

So far, Benedict XVI seems determined to use the Brazil trip to demonstrate the sincerity of his social concern. On the papal plane, the pope even signaled his support for the beatification of the ultimate icon of the liberation theology movement – the late Archbishop Oscar Romero of El Salvador, assassinated in 1980 while celebrating Mass.

“That Romero as a person merits beatification, I have no doubt,” he said, while adding that he’s waiting for the decision of the Congregation for the Causes of Saints.

Catholic Universities (and High Schools) and Commencement Speakers

MOJ-friend, Notre Dame undergrad, and Georgetown philosopher Karen Stohr published an op-ed today in the St. Louis Post-Dispatch.  Many MOJ-readers will be engaged--some will be provoked--by what Karen has to say.  So, let me convert the op-ed into a post (my idea, not Karen's):

What graduation speeches should do for students

By Karen Stohr

Commencement exercises are a rite of spring and so, alas, are controversies
over commencement speakers. At secular and religious schools alike, these
disputes reveal deep moral and political divisions among students, faculty,
alumni and parents.

What, if anything, does an institution's choice of a speaker indicate about its
moral priorities and commitments? My alma mater, St. Joseph's Academy in St.
Louis County, has found itself addressing this question in the public spotlight
with its recent decision to rescind a speaking invitation to U.S. Sen. Claire
McCaskill, D-Mo.

The invitation apparently was withdrawn in response to complaints from parents
who think that McCaskill ought to be prohibited from speaking at a Catholic
school commencement on the grounds that her publicly expressed views about
abortion and stem cell research conflict with Catholic moral teaching.

These angry parents have company. The Virginia-based Cardinal Newman Society,
for example, makes a point of scrutinizing commencement speakers booked for
Catholic colleges and universities and protesting those whom it regards as
objectionable.

The moral principle at work here is the concept of "scandal," a word that has a
technical meaning in Catholic moral thought. Roughly, "giving scandal" means
leading others into moral wrongdoing through words, deeds or omissions. It is
one way of corrupting others.

Now, it is the rare commencement speaker who can manage to lead her listeners
into anything, especially grave moral wrongdoing. If it would give scandal for
McCaskill to give a commencement speech at St. Joe, it surely couldn't be on
the grounds that she would be exhorting students to engage in immoral practices
or confusing them about Catholic teaching on abortion and stem cell research,
which is widely known.

No, the real moral concern must be that having McCaskill as a commencement
speaker somehow would constitute an endorsement of her views by a Catholic
institution. But is that the case?    

By their nature, educational institutions are places where controversial ideas
find a platform. I am a faculty member in the philosophy department at a
Catholic university. Every semester, I assign my students readings that
conflict with Church teaching, alongside traditional Catholic sources; indeed,
I cannot teach philosophy any other way.

At its core, education consists of the common pursuit of truth. Catholic
educational institutions, like their secular counterparts, have faith in the
power of human reason to discern what is true and what is not. The job of an
educator is to help students expand and develop their intellectual capacities,
and that requires confronting new ideas and grappling with opposing points of
view.

The path to knowledge is a difficult and murky one, and making our way forward
is a joint effort. Commencement exercises are a celebration of education as a
communal project. In asking someone to speak, an institution honors that
person's ability to contribute to that project, but the invitation cannot
possibly imply endorsement of each and every idea she contributes. If that were
the standard, commencement speakers quickly would become extinct.

Rescinding McCaskill's invitation to participate in this celebration does more
than demonstrate disagreement with her views on abortion and stem cell
research; it also expresses the attitude that she is not worth listening to on
any subject at all and denies her any rightful role in this communal pursuit of
truth.

That is hard to reconcile with Christian love and respect for human dignity.   

What message will St. Joe students carry away from this incident? That the
Church holds fast to its moral positions with integrity, grace and charity?
Probably not.

More likely, they will come away thinking that the appropriate moral response
to someone who hold views one regards as mistaken is to slam the door in her
face, on the grounds that she is unworthy of a place at the table.

And that would be a scandalous form of Catholic education. 

[Karen Stohr is a graduate of St. Joseph's Academy, Class of 1988. She is an
assistant professor of philosophy at Georgetown University, holds an
undergraduate degree from the University of Notre Dame and Master's and
Doctorate degrees in philosophy from the University of North Carolina at Chapel
Hill.]

Traveling by Catholic Social Thought to . . . France?

If Catholic social thinkers continue to see the road toward a just society as paved with massive transfers of wealth and power to centralized government, with ever-more layers of regulations upon the private sector, and with ever-growing mandates to employers about benefits and arrangements that must be afforded employees, we may look up some day and find that we’ve arrived in . . . France.

This past weekend’s presidential election in France offers a good occasion for rethinking the nature of a healthy and just society and for challenging the too-easy ascription by many to Catholic Social Thought of government-centric political agendas. The nation of France exhibits exactly that kind of expansive social welfare system and all-encompassing set of employee-friendly mandates on business that many Catholics on the left—those who call themselves Social Justice Catholics—appear to envision as the ideal that should be sought in this country. Yet all is not so well in the Parisian Paradise. Even the French electorate has recognized that an adjustment is necessary. The new conservative president, Nicolas Sarkozy, won election by arguing that the French need to work harder, that business needs greater freedom and less regulation to be successful, and that social welfare benefits need to be reduced. To be sure, Sarkozy has promised and commentators anticipate a modest correction that leaves the French social welfare system largely intact (which I predict means that little will change and French decline will not be arrested).

My friend and St. Thomas colleague Rob Vischer may see this as another example of what he recently termed a “periodic stick in the eye of those who want to use the government to help the poor” by conservative Catholics. But I think it vitally important to regularly remind all of us that faithful recognition of our responsibility for the common good, a sincere and sacrificial endorsement of the preferential option for the poor, and a firm commitment to the central role of the family in society should not shade into uncritical support for the secular welfare state nor be confused with a political platform for new government programs, economic controls, and regulations or unfunded mandates to be imposed on employers. France serves well as that reminder.

In France, by government edict, employees certainly do receive comfortable wages, possess generous benefits, and enjoy liberal leave policies. Or at least this is true for those fortunate to find employment. Consider what has accompanied the French welfare state and government mandates:

* A stagnant economy (the American economy grows at three times the rate of France);

* High unemployment (about twice as high as in the United States and persisting at those high levels for more than a decade);

* An entitlement mindset so ingrained in an entire generation that university students riot over the prospect that they might have to undergo a one-year probationary period before receiving government-imposed life tenure in private employment;

* a precipitous decline in entrepreneurship (in the very country in which the word originated);

* a failure to contribute much of anything in the way of creative increases in wealth to the world economy; and

* a troubling tendency to keep the economy afloat by importing and exploiting foreign and immigrant workers (in whose segregated communities within France unemployment reaches 40 percent).

Nor we would want to hold up France as the case model for a just society under precepts of Catholic thought. Healthy and happy attitudes do not flourish across the sea. In its 2002 Global Attitudes Survey, the Pew Research Center found that the French were more unhappy than Americans and much less optimistic about the future. So much for the argument that Americans are more anxious and stressed, lacking the security and comfort of the European social welfare system.

And we could devote a week’s worth of posts and still not say all that can and should be said about the decline of faith and the pervasive spiritual emptiness in France (except perhaps for Muslims in the immigrant communities). A leading French religious publication says that France is no longer a Catholic country and, indeed, only half of those who still call themselves Catholics even believe in God.

I’m sure that my faithful interlocutors on the left side of political spectrum here on the Mirror of Justice would respond that we need not follow this road all the way to France. But I seldom hear words of caution about the growth of government and the decline of freedom being raised from that perspective. And I worry that the farther one travels down the golden-paved road of government benefits and employer mandates , the more difficult it becomes to step off. Indeed, I worry that the train has already left the station on a non-stop trip to France, unless someone pulls the emergency brake switch.

Even in the United States, government programs tend to become entrenched, benefit recipients of all kinds (including corporate welfare beneficiaries) become addicted to the flow of public money and develop an enervating sense of entitlement, and government employee unions grow exponentially with the attendant growth in bureaucracies, thus creating a special interest group that lobbies for still more government. Meanwhile, the poorest of the poor remain at the bottom; quality education—the greatest engine for economic opportunity for the poor—remains elusive as the teacher’s unions control the government-run schools; and social services become increasingly bureaucratic and coldly functional in nature.

Should not the Mirror of Justice devote more attention toward creative alternatives to developing a just society and enhancing opportunities for all, without careening toward the social and spiritual disaster that is modern France?

When Catholic Social Thought is introduced into a debate, too many demonstrate a tendency to leap quickly to the conclusion that the option for the poor and other forms of social justice are best achieved through governmental benefit programs, government regulations, government mandates for business, government taxation, etc. But Catholic Social Thought is bigger than and hardly reducible to any political agenda. As Professor David Hollenbach (who would never be accused of being conservative) has well written, social justice is not chiefly an exercise of distributing things or utilities, but rather of expanding participation in inherently valuable social activities.

A primary value of our exchanges on Mirror of Justice is that we have an opportunity to expand the parameters of analysis within the framework of Catholic Social Thought.

Greg Sisk

"Provid[ing] Cover"

I share Rob's admiration for Kahan's "Cognitively Liberal State" paper and agree with him that "a persistent call to sacrifice in order to alleviate some of the suffering of the poor is not . . . the same as a periodic stick in the eye of those who want to use the government to help the poor" and also that we all "let ourselves off much too easily in terms of what the Gospel calls us to do."  And, as he would probably guess, I tend to agree with more -- but not that much more -- of what I read in First Things than what I read in Commonweal (which I admire and to which I have been honored to contribute).

Rob also writes:  "CST is broad enough that it can provide cover for directions in which we were already headed, and our magazines reflect that."  This seems at least kind of true, and yet troubling.  What do others think?  I hope that there is something more going on, i.e., that the "conservative" themes and implications of CST shape the paths and challenge the plans of those headed in one political direction while the "liberal" themes do the same for those headed in the other direction.  It's not just that First Things and Commonweal -- and their readers -- are exactly where and what they would have been, absent the challenge of CST . . . is it?

Paul Berman on Legal Pluralism

It's interesting to me when Catholic legal thought "invades" legal theorizing on ostensibly unrelated topics.  Paul Berman's new paper, Global Legal Pluralism, is interesting in its own right, but it is particularly interesting for people on this blog because of its discussion (later in the paper) of subsidiarity.  Here's the abstract:

This Article grapples with the complexities of law in a world of hybrid legal spaces, where a single act or actor is potentially regulated by multiple legal or quasi-legal regimes. In order to conceptualize this world, I introduce literature on legal pluralism, and I suggest that, following its insights, we need to realize that normative conflict among multiple, overlapping legal systems is unavoidable and might even sometimes be desirable, both as a source of alternative ideas and as a site for discourse among multiple community affiliations. Thus, instead of trying to stifle conflict either through an imposition of sovereigntist, territorially-based, prerogative or through universalist harmonization schemes, communities might sometimes seek (and increasingly are creating) a wide variety of procedural mechanisms, institutions, and practices for managing, without eliminating, hybridity. Such mechanisms, institutions, and practices can help mediate conflicts by recognizing that multiple communities may legitimately wish to assert their norms over a given act or actor, by seeking ways of reconciling competing norms, and by deferring to other approaches if possible. Moreover, when deference is impossible (because some instances of legal pluralism are repressive, violent, and/or profoundly illiberal), procedures for managing hybridity can at least require an explanation of why a decisionmaker cannot defer. In sum, pluralism offers not only a more comprehensive descriptive account of the world we live in, but also suggests a potentially useful alternative approach to the design of procedural mechanisms, institutions, and practices.
 
The Article proceeds in three parts. First, I summarize the literature on legal pluralism and suggest ways in which this literature helps us understand the global legal environment. Second, drawing on pluralist insights, I offer an analytical framework for addressing normative conflicts, one that provides an alternative both to territorially-based sovereigntism and to universalism, and instead opens space for the recognition and accommodation of multiple normative commitments. This framework generates a series of values and principles that can be used to evaluate the efficacy of procedural mechanisms, institutional designs, and discursive practices for managing hybridity. Third, I survey a series of such mechanisms, institutions, and practices already in use in a wide variety of doctrinal contexts, and I discuss how they work (or sometimes fail to work) in actual practice. And though all of these mechanisms, institutions, and practices have been discussed individually in the scholarly literature, they have not generally been considered together through a pluralist lens, nor have they been evaluated based on their ability to manage and preserve hybridity. Thus, my analysis offers a significantly different approach, one that injects a distinct set of concerns into debates about global legal interactions. Indeed, although many of these mechanisms, institutions, and practices are often viewed as “second-best” accommodations between hardline sovereigntist and universalist positions, I argue that they might at least sometimes be preferable to either. In the conclusion, I suggest implications of this approach for more general thinking about the potential role of law in identifying and negotiating social and cultural difference.

Patrick's Reply

I'm relieved by Patrick's reply to my question.   I don't believe my reading of his post was "sill[y]" or "concoct[ed]."  But his explanation of his reasons for referring to the Pope's discussion of excommunication of pro-choice Catholic politicians in reference to Kaveny's editorial help me to understand his post in a different light. 

That said, I continue to disagree with his reading of Kaveny's editorial.  I understand Kaveny to be simply discussing the degree to which the law should try to codify our moral obligations (whatever they may be) and so I don't think she is really challenging the fundamental moral principles to which Patrick refers.  I don't read her reference to physical integrity to be tipping its hat towards integrity-based arguments against any regulation of abortion, and perhaps this is where my reading differs from Patrick's.  I read her argument as making a narrower point by comparing a woman who carries a child to term at risk to her own health or life to someone who risks his own life to save another.   I do not see her actually offering a judgment about whether there is a moral obligation so to act (in either case).   The law does not compel a person to act in the latter instance, and the question is why it ought to in the former. 

Since all pregnancy involves a degree of risk, Patrick has a point in questioning whether the analogy she makes can be cabined.  But I think meaningful distinctions about risk can be drawn here, and I think the analogy is an interesting one.  Even if one agrees with the Church's position that a woman is in fact obligated to carry the child to term, does the gap between what is moral and what portion of that category it is wise to try to enforce by law provide room to disagree about whether the state ought to insert itself into a woman's decision in this narrow category of cases?