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.

Tuesday, April 17, 2007

Review of Charles Fried

Here's my review, in Commonweal, of Charles Fried's recent book, "Modern Liberty and the Limits of Government."  A bit:

“Liberty,” Fried argues, “is individuality made normative.” It is the triumph of individuality “as much over authority that would govern by despotism, as over the masses that would subordinate the minority to the majority.” He concedes that there are social realities-cultures, religions, languages-in which persons are situated and by which they are shaped. “But all these things,” Fried contends, “are the products of individual persons.” Individuals, he insists, “come first. Whoever says otherwise is trading in metaphors.”  . . .

It is often, and rightly, observed that the libertarian moral anthropology, for all its Promethean trappings, is pretty thin, assigning greater moral import to our “separateness from each other” than to our dependence on one another. As Pope John Paul II wrote, the ability of individuals “to decide their own destiny and future in complete autonomy, trusting only in themselves and their own powers” does not exhaust or capture “the grandeur of the human being.” And while there is surely something to Fried’s claim that “a life without choice, a life consisting of unchosen goods, is an inhuman existence,” it is also inescapably true that many human goods are given, not claimed, and that to be independent and alone is more “inhuman” than to depend on others.

That said, Fried provides an important warning about the temptations to confuse the preferences of the majority with the common good and to slight, as merely selfish, the objections of those who resent the majority’s imposition. Certainly, it is possible to overstate or misuse the claim that “individuals come first.” And yet, as C. S. Lewis once wrote, in a little essay called “The Weight of Glory,” we “have never talked to a mere mortal. Nations, cultures, arts, civilization-these are mortal, and their life is to ours as the life of a gnat. But it is immortals whom we joke with, work with, marry, snub, and exploit-immortal horrors or everlasting splendors.”

Smith reviews Gorsuch on assisted suicide

Sobering:

Today a diverse, if loose, coalition of politically strange bedfellows—disability-rights activists, civil-rights organizers, advocates for the poor, medical-professional organizations, the Catholic Church, and the pro-life movement—stands as an effective bulwark against the spread of assisted-suicide legalization. Illustrating how successful this coalition has been, it defeated voter referenda to legalize assisted suicide in Michigan in 1998 and Maine in 2000. Last year, in a high-profile victory, assisted-suicide legislation in California died unexpectedly in a State Senate subcommittee. Serious efforts to legalize assisted suicide have also been turned back repeatedly in Vermont and (barely) in Hawaii.

But the euthanasia movement is strong, too. Its organizations are well financed, and its leaders and grassroots proponents are determined. Thus the only sure thing about the future of assisted suicide is that there will be political trench warfare over the issue for years to come. A thorough analysis of the “future” of assisted suicide in America will bring the same depth of research and analysis to the political dimension of the issue that Gorsuch so capably brought to his description of the trends in law and philosophy.

Happily, we don’t (yet) live in a country where our most contentious social issues are decided in the ivory tower by courts or regulators imposing the views of academic “experts” on the rest of society. In the end, for better or for worse, the future of assisted suicide and euthanasia will likely be decided via democratic debate in the public square. Indeed, this ongoing political struggle may be the most interesting part of the subject, and the book suffers by omitting it.

Fish on "Religion Without Truth"

Here's a (relatively) recent Stanley Fish "Think Again" column, called "Religion Without Truth."  He has some provocative -- in the good way -- things to say, about liberal education and religion, that will be of interest to those who like to think (or, who cannot help thinking) about the whole "Catholic university" thing.

Crackdown on Conscience

For those following the controversy over Muslim taxi drivers who refuse to transport passengers carrying alcohol, the airport commission here in the Twin Cities has voted to crack down on any driver who refuses to carry a passenger for reasons other than safety.  The first offense will result in a 30-day suspension, the second offense will result in a two-year revocation of the driver's license.

Saving India's Girls

Ashley K. Fernandes, an assistant professor of pediatrics and community health, has an opinion piece in the May issue of First Things commenting on India's recently-announced plans to open orphanages to take in and raise unwanted baby girls.  He explains:  "While both India and the world acknowledge that sex selection is a crisis of epic proportions, one that has already seriously tipped the gender balance to favor boys, the laws to ban the practice in India have so far been ineffective."

What I found almost breathtakingly refreshing about the article was the fearlessness with which the Indian government deals with those who would question the cost-effectiveness, the economic efficiency of this plan:

India’s orphanage plan is called the cradle scheme. According to Renuka Chowdhury, the minister of state for women and child development, it has already been funded in the coming national budget. Precise figures on cost and a time frame for set-up are lacking; nevertheless, it is a beautiful example of how—in a world that prizes stark efficiency, the supremacy of personal autonomy, and the purported “rationality 
of utilitarianism”—a country of a billion people can take a collective stand to protect the most vulnerable in its midst. India is by no means perfect; Chowdhury herself, obsessed with population control, once sought to ban women and men with more than two children from contesting Parliamentary and state elections. There are many more in India who see abortion as a solution to the country’s stifling population problem. But it nonetheless seems a significant step in the right direction.

The article quoted Chowdhury: “What we are saying to the people is have your children, don’t kill them. And if you don’t want a girl child, leave her to us.” When asked if setting up such a system of orphanages might encourage even more abandonment of baby girls, the minister replied: “It doesn’t matter. It is better than killing them.”

Although even pro-abortion academics and politicians in the United States would likely condemn sex-selective abortion as morally impermissible (although it is hard to see on what grounds, if abortion is a fundamental right), skeptics and cynics will still say that the cradle scheme is too ambitious, too optimistic, and too inefficient. Who will pay for all these children? Should a developing country waste its resources on babies who are unwanted anyway? What will be the social impact of hundreds of thousands of girls brought up by the state?

India has its simple answer: We don’t know. We don’t know for how long and how much we will be able to pay for this program (but we are committed to trying); we don’t know the impact of spending resources on unwanted babies (but we know it is not a waste); we don’t know the social implications of girls growing up under the care of Mother India (but it is better than killing them). India’s plan is a model of inefficiency—and simultaneously a valiant stand for the value of human life. . . . But the cradle scheme is an inefficiency in which we—and all humanity—can rejoice. It is an inefficiency for justice, an inefficiency for the sake of another.

COMMONWEAL on The Iraq War, the Bishops, and the Bishops' Critics

April 20, 2007 / Volume  CXXXIV, Number 8  

EDITORIAL

Bishops & Their Critics

The Editors


President George W. Bush’s decision to go to war with Iraq was initially supported by a host of liberals, among them New Republic editor Peter Beinart and New Yorker writer George Packer. These commentators were convinced that Iraq posed an imminent threat to its neighbors and that Saddam Hussein’s regime had to be removed for both security and moral reasons.

As the administration’s case for war was gradually exposed as a fabrication and the botched nature of the occupation became clear, most of these liberals have admitted they were wrong.

No such admissions of error, or even regret, have been issued by outspoken Catholic neoconservatives who, using the most tortured just-war arguments, publicly defended Bush’s war of choice. Michael Novak, of the American Enterprise Institute, even flew to Rome to persuade the Vatican not to oppose the invasion. In First Things, George Weigel, of the Ethics and Public Policy Center, memorably lectured religious leaders on the “charism of political discernment” enjoyed by those in the White House (“Moral Clarity in a Time of War,” January 2003). It was a charism, Weigel pointedly wrote, “not shared by bishops.” He assured the war’s critics that elected officials “are more fully informed about the relevant facts.”

Not all the relevant facts, evidently. Writing in the April 2007 First Things (“Just War and Iraq Wars”), Weigel revisits his argument for preventive war, and predictably finds it sound. In doing so, however, he concedes that tactical and strategic mistakes were made. He is silent on whether those mistakes cast doubt on his claim that the president’s “charism” made him a better judge than religious leaders of the morality and wisdom of war.

Weigel has long been a critic of positions taken by the United States Conference of Catholic Bishops (USCCB) regarding the church’s just-war teaching. He is especially dismissive of the bishops’ insistence that just-war thinking begins with a “presumption against the use of force.” Weigel’s objection rests to some extent on an esoteric historical point. While the bishops concede that a presumption against the use of force was not a defining criterion of the traditional teaching, they nevertheless consider such a presumption to be a legitimate development of that teaching. In an age of nuclear weapons, the bishops reason, the consequences of armed conflict are exponentially more dangerous.

It is true that the moral responsibility of statesmen is different from that of bishops and ordinary Christians. Still, looking back at the many nuanced statements issued by the USCCB regarding the war in Iraq, it is hard not to conclude that the bishops’ charism, rather than the president’s, has better served the nation. As early as November 2002, the bishops wrote of their deep concern “about recent proposals to expand dramatically traditional limits on just cause to include preventive uses of military force.” Repeatedly, the conference expressed the gravest doubts about the moral justification for the Iraq invasion. The bishops also reiterated their support for the right of conscientious objection and selective conscientious objection. In a prescient February 2003 statement on the likely consequences of war, Archbishop Wilton D. Gregory, who was then president of the conference, warned that “a postwar Iraq would require a long-term commitment to reconstruction, humanitarian and refugee assistance, and establishment of a stable, democratic government at a time when the U.S. federal budget is overwhelmed by increased defense spending and the costs of war.”

As the war dragged on, the bishops recognized that “a new Iraq cannot be imposed by the United States or any other occupying power” and that “our nation has to confront both our limitations and responsibilities in the extremely complex social, political, and religious reality of post-Hussein Iraq.” When evidence emerged that the United States was torturing prisoners, the conference condemned the practice in no uncertain terms. And last year, the conference issued two papers on making a “responsible transition” in Iraq. “Our nation cannot afford a shrill and shallow debate that distorts reality and reduces the option to ‘cut and run’ versus ‘stay the course,’’’ wrote Bishop Thomas G. Wenski, chairman of the Committee on International Policy, in January 2006. Wenski argued that U.S. forces should leave “sooner rather than later,” and noted that the key to any transition will be greater regional and international support and participation in forging a settlement. In a November statement, the bishops endorsed the idea of benchmarks to measure progress, recognizing that it is Iraqis who ultimately must make peace among themselves. If the Iraqis fail to meet those benchmarks, the United States must reevaluate its presence in Iraq.

For a group that is supposed to lack the charism to make sound judgments about war and peace, the bishops have acquitted themselves far better than their critics.

Monday, April 16, 2007

Punishing the Church

Our fearless leader, Mark Sargent, has a must-read essay in the new issue of Commonweal titled "Vengeance Time: When Abuse Victims Squander Their Moral Authority."  An excerpt:

SNAP’s public campaign to expose priests who have merely been accused-or sometimes cleared-of abuse has a vigilante air about it. In their eagerness to effect justice as they know it, SNAP may in fact be disrupting the rule of law. Likewise, the Philadelphia prosecutors’ diatribe against the archdiocese (and the front-page coverage in the Philadelphia Inquirer) served as a kind of public theater in which the prosecutors cathartically worked out their rage at not being able to indict the archdiocese and Cardinal Anthony Bevilacqua. The public, emotional, and absolutist character of all these actions expresses not only great anger and frustration, but also the desire to abase and punish. It’s vengeance time.

To be sure, the bishops have brought these theatrics of vengeance on themselves. For an institution famous for its rituals and emphasis on repentance, the church has offered precious few rituals of penitence as a way of acknowledging its fault, recognizing the harm it has done, and seeking forgiveness both from God and those it has wronged. Victims have often said (probably to their lawyers’ alarm) that they would have been content with an opportunity to tell their stories, an acknowledgement of responsibility, exposure of the malefactors, and a genuine apology. The Cultrera brothers’ remarkable documentary Hand of God, recently broadcast on PBS, dramatically shows how a victim first sought only some recognition of the injuries he suffered at the hands of one of the Boston Archdiocese’s worst offenders. He sued for monetary damages only after Bishop John McCormack, one of the guiltiest diocesan officials, flat out lied to him and treated him with peremptory condescension.

No wonder the extraordinary proposed settlement of the Diocese of Spokane bankruptcy requires Bishop William Skylstad not only to publish the names of all credibly accused priests (which has already been done elsewhere), but also to appear at the pulpit in every parish where an abusive priest served, and provide every victim an opportunity to speak out publicly in the parish where he was abused. What’s more, Skylstad must publicly call for eliminating statutes of limitations on sex crimes against children. In the absence of voluntary gestures of penitence, victims and their advocates are extracting public humiliation.

It is not enough to say, however, that bishops, priests, and the church are finally getting what they deserve. The vengeance game is a dangerous one. When the original offense is terrible, we feel empowered to do terrible things in response. Blinded by our righteous rage and convinced of our moral superiority, we may do things we later regret.

Evangelicals, Divorce, Same-Sex Marriage

Sightings  4/16/07

Evangelical Adaptations
-- Martin E. Marty


Since over one-fourth of U.S. citizens are listed in the demographic or sociological category "Evangelicals," we should spend at least one-fourth of our energies sighting accounts of them in the secular media, our chief zone of operations and spying.  Recent treatments stress some significant changes within the camp, changes which fair-minded observers should note before they generalize and stereotype.

Dr. David Instone-Brewer, an evangelical scholar who has written at book length on the subject, in the Wall Street Journal discusses reasons why evangelicals, who once spoke with horror and judgment against divorce and the divorced, are now blithely settling for possible presidential candidates who have divorced repeatedly.  Why the change?  Frankly, because "the divorce rate among evangelicals is actually as high as that of the general population."  In short, M.E.M. observes, "Everybody's doing it, so why preach against it?"  On such terms, many in this camp long ago gave up supporting "Sunday closing" laws and other instruments that helped keep them from violating one of the commandments.  Opposition to alcohol, which once led them to total support for tee-totaling, has softened now.  Et cetera.

We used to wonder about the selective literalism in moral judgments, noting inconsistencies on the evangelical front -- just as we notice them on every front.  Why today such vehement denunciations of homosexuality, about which the Jesus of the gospels is silent, and to which the Paul of the epistles devotes only a half-dozen lines -- while both Jesus and Paul were firm in opposing divorce when it then meant remarriage to someone whose former spouse is still alive?  How to wriggle out?  Saint W. C. Fields was a model: He said he'd been studying the scriptures many years, looking for a loophole.

It turns out that Dr. Instone-Brewer and two scholars he cites, Craig Keener at Duke University and William Heth at Taylor University, who earlier had written books affirming the traditional biblical anti-divorce stands, "now teach differently," as does Instone-Brewer, himself a convert to the revised cause and code.  "They conclude that Jesus and Paul would have rejected no-fault divorce and that they would have permitted a wronged partner to initiate a divorce based on the Old Testament grounds of adultery or neglect.  This new scholarship may allow evangelical leaders to say what they have wanted to say for some time -- that divorce is permitted so long as there are strong grounds for it."

Instone-Brewer reports that some other evangelical scholars go further: "abuse and abandonment are valid grounds," as one would hope, while others advocate a "covenant marriage" in which spouses agree not to divorce unless ....  James Dobson of Focus on the Family promotes this creatively wriggling approach.  But where evangelicals used to gulp when dealing with divorce and the divorced, now that they are "doing it," they are more generous.  Only "Mr. Giuliani, whose philandering apparently helped lead to both of his divorces" at the moment is still criticized.  If they are stuck with him as the potentially willing candidate, will they keep on opposing philandering?

The point of all this is to note: 1) evangelical diversities; 2) evangelical adaptation to the times; and 3) celebrations of affirmation of those who must divorce.  But questions remain.  For example, are not almost all divorces undertaken by partners who both say that "there are strong grounds for it"?  Don't count on evangelicals or anyone else to hold the line here if their candidates or they "do it."

What's the next barrier to fall?  Is this a slippery slope?

References:
David Instone-Brewer's article "Evangelical Separation Anxiety" appears in the Wall Street Journal (April 6, 2007), and can be read at: http://www.opinionjournal.com/taste/?id=110009907.  His book Divorce and Remarriage in the Church (InterVarsity Press) is an informed scholarly review of the arguments pro and con the new measures about divorce.

Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

Subsidiarity and the Katrina Recovery

I've posted a short essay of mine from the current Journal of Catholic Legal Studies titled "Subsidiarity and Suffering: the View From New Orleans."  Here is the abstract:

The principle of subsidiarity often stands accused of being infinitely malleable and unhelpfully abstract, suiting whatever purposes an actor already has in mind. This essay seeks to discern the core of subsidiarity's real-world meaning by considering its implications for the rebuilding of post-Katrina New Orleans. Analyzed, as it must be, in light of the web of Catholic social teachings from which it arises, subsidiarity reminds "compassionate conservatives" that the meaningful empowerment of local communities will often be illusory, absent an active role for the federal government. At the same time, Catholic social teaching challenges the individualist premise of modern liberalism by insisting that subsidiarity's ultimate objective is not an individual's achievement of autonomy for autonomy's sake, but the facilitation of authentic human flourishing. In this regard, we must ensure that federal funding furthers local bodies' long-term viability and self-sufficiency. To the extent feasible, the lower body should take the lead in articulating plans and priorities for a given community's recovery, subject to the higher body's checking authority, and that authority should itself be grounded in subsidiarity—that is, it should be exercised with the aim of fostering the self-sufficiency of local communities.

Sunday, April 15, 2007

"The American Experiment"

I'm just back from the University of Portland, and the Garaventa Center's conference on "The American Experiment in Religious Freedom."  It was an excellent event, with many engaging and provocative talks (Justice Scalia on one day, Sen. Leahy on the other, etc.), and lots of conversation with old and new friends, former students, my confirmation sponsor, whom I had not seen in 20 years, and, of course, MOJ readers and bloggers! 

I was struck by what great strides the University is making.  There are real opportunities, I think, in that part of the country, for a school like the University of Portland (and for the Center) to make a difference for good.