Mirror of Justice

Tuesday, December 5, 2006

Common Declaration of Peter and Paul

The Holy See has just recently issued the English text of the Common Declaration signed by Pope Benedict XVI and the Patriarch Bartholomew I during the Pope's recent trip to Turkey. It reads differently than the text the Pope signed with the Archbishop of Canterbury when the latter visited Rome a short while ago. In any event, the Common Declaration signed in Constantinople/Istanbul is HERE . RJA sj

Sex and CLT

By Michael Scaperlanda

Recently, we have had several posts (including here, here, and here) on sex, sexuality, gender, and sexual orientation. Sex AND morals, culture, or law are topics that generate a lot of heat these days. And, I am thankful that MOJ provides a forum where profound differences can be discussed civilly and with respect. Here I offer a short reflection on why I think this is one of the most fundamental topics for the development of Catholic Legal Theory (our stated purpose at MOJ). Unfortunately, other commitments prevent me from engaging in an extended and ongoing discussion of this thesis for at least two weeks, but I want to offer the thesis now while it is fresh in my brain (distracting me from the work I need to do), and I will be happy to come back to it when that work is done. Exploring these issues is also a heavily frieghted endeavor, but hopefully I have managed to put some of the baggage aside.

If possible, I think we need to bracket the moral, cultural, and legal issues surrounding sex and set those issues aside in order to address what I sense is a deeper and more foundational question – an anthropological question. What or who is the human person and how does that person relate – to other human beings, to nature, and to the transcendent. Science, philosophy, and theology can all be helpful here.

I take as an objective biological fact when it comes to human beings that 1 + 1 = 1 for one type of relationship and 1 + 1 = 0 for two other types of relationships. Yes, I know that the new math is hard to follow. One man and one woman equal one whole and complete biological unit (at least when it comes to reproduction) in a way that two men or two women do not. In this sense, Jerry Maguire is stating a truth when he says “You complete me.” There is something in our design that suggests an incompleteness (perhaps a radical incompleteness) without the other sex.

I also take as an objective fact that some minority of human beings have subjective preferences that deviate from this biological norm. Homosexuals, for instance, are attracted to persons of the same sex, transgendered (if I understand this term correctly) are males living in female bodies and females living in male bodies, and pedophiles are attracted to pre-pubescent children. By using the term “subjective preference,” I am not suggesting that these preferences are chosen. These subjects may have been born with these desires, inclinations, and preferences. They may be genetically predisposed or some early life experience may have embedded these preferences deep within the psyche. All of this is beyond my limited scientific knowledge. But, I will assume as fact that some subjects have deeply ingrained (non-chosen) preferences that deviate from the biological norm.

If I am correct about everything stated above, we now get to the crucial set of questions. Does the biological reality (1 + 1 = 1) signify a deeper reality about the human person? Is there really a complementarity of the sexes that is not just a product of social construction? If the answer to these questions is “yes,” can we conclude that the coupling of a man and a women is the “ideal form” of coupling? (Much more argument would need to be made to develop the idea that the coupling should take place within a stable, lifelong relationship that we call marriage.) If the answer to these questions is “no,” then apart from ensuring a replacement population (which can now be done without coupling), is there any reason for society to view one form of coupling as “ideal”?

Assuming that the answers to the first two questions are “yes”; that the biological reality reflects and signifies a deeper design reality involving the complementarity of the sexes, how should we as a society treat deviations from the norm? Should we pretend that there is no “ideal” and treat all (or most) subjective preferences (as defined above) as if they were equivalent? Should we celebrate the deviations as if they were unique flowers planted in God’s garden, giving us variety and diversity? Should we “tolerate” those who act on these preferences, understanding that while not “ideal” there is really no harm (like tolerating a Mohawk hair cut in a school classroom)? Should we look at these deviations as a product of the fall, acknowledging that each of us is an imperfect and incomplete being? If so, do we treat the deviations as we would chronic fatigue or blindness or some other deviation from the norm that has to be coped with the best we can (suffering and the cross seem to be built into the plan of redemption) or do we treat the deviation as if it was a cancer killing the subject and requiring immediate and aggressive attention to root it out?

Karol Wojtyla, in Love and Responsibility, provides an extended philosophical examination of some of these questions. As John Paul II, his Theology of the Body provides a theological examination of some of these themes.

At the outset, I suggested that this topic is fundamental for the development of Catholic Legal Theory. Reflecting on the design of our bodies, our radical incompleteness, our intense desire (especially in males) to “use” another’s body to satisfy our own needs, and a whole host of related topics can offer insight into the origin and nature of community, the need for rules (and hence the need for promulgators of rules) to govern behaviour, the origins and nature of government and other governing structures (the corporation, etc.). In other words, I suggest that serious reflection on these matters of sex and sexuality is foundational to the CLT project.

What do others think?

Capital Punishment Is Unconstitutional; Or, Why Rick Garnett Is Wrong (Again)!

By Michael Perry

I've justed posted a paper to SSRN explaining why, in my judgment, capital punishment violates the cruel and unusual punishments clause of the Constitution--and then explaining why the Supreme Court probably should not so rule.

Here's the abstract:

Whether a law (or other policy) is unconstitutional is one question; whether the Supreme Court (in an appropriate case) should rule that the law is unconstitutional is a different question. Contemporary constitutional theorists are virtually unanimous in ignoring the analytic space between the two questions. That a law is unconstitutional does not entail that the Supreme Court should rule that the law is unconstitutional. In this paper - a revised version of which will be my contribution to a symposium issue of the Georgia Law Review honoring Professor Milner Ball - I explain why we should conclude that capital punishment violates the cruel and unusual punishments clause. (I am inclined to think that we are all originalists now; in any event, my explanation presupposes an originalist conception of constitutional interpretation - although, to be sure, *not* Antonin Scalia's misconceived originalist conception of constitutional interpretation.) I also explain, however, why the Supreme Court (probably) should not rule that capital punishment is unconstitutional.

To download/read the paper, click here.

Engaging Modernity

By Rob Vischer

Kudos to MoJ-er Elizabeth Kirk and her colleagues at the Notre Dame Center for Ethics & Culture for the great conference on modernity last week. Three highlights: Steve Smith deconstructing the modern case for law's authority, Paul Griffiths insisting that Christians should reject modern conceptions of intellectual property (and provocatively, suggesting that plagiarism may not be immoral under a Christian worldview), and Alasdair MacIntyre exploring the similar predicaments of Islam and western Christianity.

MacIntyre argued that Muslims are split between those who have rejected modernity (the fundamentalists) and those who have accommodated themselves to it (the secularists), and that a similar split has occurred among Christians. So in both traditions, the challenge is to cultivate a dialogue among groups who are able to transcend both fundamentalism and secularism. (When pressed, he offered Dorothy Day as an example of a Christian who avoided both extremes.)

I thought of MacIntyre's thesis when I read this post from Rod Dreher in which he discusses an article by David Mills (not available on-line) about instilling a Christian imagination in children. Here's an excerpt from the article:

By "imagination," I mean the faculty that controls what we, and especially children, think the world is like. It give us the map by which we plot our course. It gives us our vision of the world about which our mind thinks and on which our will works. It tells us what feels normal, average, to be expected, what feelings should go with what actions.

To the extent a child has learned it in childhood, it changes his whole life, even when he thinks he has left his childhood behind. Even if he insists on losing his faith, it limits the sort of faith he will adopt instead. If he insists on sinning, it limits the sorts of sins he can commit with (so to speak) a clear conscience. It will determine how he rationalizes his sins.

. . . . Revulsion is a much better protection from the force of the passions than an intellectual understanding by itself. To feel "This is yucky" is not a final protection from sin, but it is better than thinking "This is wrong" but feeling "This is okay." Lust offers the paradigmatic case (examples come quickly to mind), but this is true of pride, gluttony, envy, and all the rest, even sloth.

[We have an obligation to] try and form [children's] imaginations, to give them an alternative to the worldly lessons even the sheltered child absorbs as if from the air, by immersing them in books that express the Christian understanding of the world. . . . A good story will not make him good, but it should help him understand goodness a little better and make doing good a little easier by making it feel more normal. It will teach him that the world is this kind of place and not that kind.

This is why traditions -- as championed by MacIntyre and by David Mills -- can be so threatening to modern liberalism's fixation on individual autonomy. Christianity is not reducible to a set of propositions to be introduced to a person at an age when they are capable of critical reflection. Charting a course between fundamentalism and secularism requires, at a minimum, a recognition that Christianity shapes our minds, but not just our minds, and that while Christianity stands in tension with modern culture, it is not closed off to it. In the words of Gaudium et spes, "nothing genuinely human does not raise an echo in [our] hearts."

Monday, December 4, 2006

The Freedom of the Church in China

By Rick Garnett

Last week, the PRC, via the state-run "Patriotic" Catholic Church, installed a new bishop in Xuzhou, China. Here is the statement from the Holy See, expressing regret over the ordination. Here is the New York Times on the affair. The Times informs us:

The Vatican asserts that it must control the selection of bishops, although it has allowed governments and dioceses to suggest possible candidates.

Although the mainland church does not take instructions from the Vatican, the Vatican has never declared a schism between itself and the churches in China. The Vatican has taken the position that the differences are political, and not differences of religious belief.

So worshipers and clergy members in the government-controlled mainland churches remain part of the communion of the faithful, as do those in underground churches on the mainland.

"Although the mainland church does not take instructions from the Vatican . . . ." Classic.

A response to Eduardo

By Robert John Araujo, SJ

I thank, with the utmost sincerity, Eduardo for his post dated yesterday, and I am grateful again for his contributions to this forum and our exchanges within it. I would like to begin with his concluding points and then respond to some of his earlier statements.

I think there is an important role and need for a discussion venue such as Mirror of Justice. It is not my position to declare that those of us who participate in this exchange are building a (in the singular) Catholic Legal Theory on any substantive issue. Having made this point, I do think we exchange views on the issues of the day that are of concern both to the law and to the Church. On some occasions there is agreement by the contributors, but on other occasions there is not. The fact that some of us may question or challenge certain teachings of the Church and others argue in their favor would not be, in my opinion, grounds for suggesting that this project, Mirror of Justice, should be discontinued.

I for one am glad that we can talk about the issues of the day that present moral and ethical challenges to our society and its members. It is clear there are differences of opinion on the law and the moral or ethical concerns that are associated with the legal issues we address as we claim to do this from a Catholic perspective. Generally, we have had civil exchange amongst ourselves to explain our respective, sometimes conflicting views. I believe that is how a disciple, a member of the Church is to conduct himself or herself. In the Letter to the Romans, St. Paul counsels that we must not be overcome by evil; but, we must overcome evil with good. This is not an easy task, but it is the task of the person who considers himself or herself a disciple of Jesus Christ. From my perspective and, yes, my experience, this forum is a much more open one than many segments of the contemporary American academy today, including some of those that use the modifier Catholic, where some contributions to discourse are discouraged or not permitted. Typically, the views that are not welcome are those that remain faithful to the Magisterium. If a person believes that another is wrong, the mechanism of civil exchange exists to explore the soundness of the views expressed by the participants to the discussion. But, there is a problem when some folks avoid any exchange, and they substitute it with ad hominem critique that objectifies the person who holds a contrary view. While such conduct exists, it should not in the Catholic forum. I think that the Mirror of Justice has enabled people with different perspectives on specific issues to participate without exclusion. Now, I would like to address a few of Eduardo’s other points on particular substantive issues.

A good number of us have recently talked about topics dealing with sexual orientation and homosexuality. I think I understand what the Church teaches and accept its teachings as correct. There are those who disagree with me, and, I guess, with the Magisterium. But I must mention that my agreement is based on a careful study of the Church’s texts and supporting medical evidence (including that from the Catholic Medical Association). I hasten to add that I have also studied the arguments and supporting information that is relied upon by those with opposing or different views. But, I find their supporting data lacking. A web log is not conducive to an elaborate, multi-page examination of the merits and shortcomings of such technical information, but I want contributors and readers to know that I have conducted a careful study of opposing arguments and the information that is relied upon for their support.

Many of the major legal issues of the day that get exposure in Mirror of Justice are discussed in other forums by those who are considered to be the “experts.” But are they really experts? Is it possible that they are, in fact, partisans in the increasing culture disputes often fueled by relativism and fragmentation of learning? It strikes me that in many instances “experts” have substituted rigorously developed objective data with political ideology. When they confront opposing views based on objective data, they shut out the data and the opinions based on the objective data as “intolerant,” “traditional,” or, dare I say, “Catholic.” When we get into certain issues that bring up matters about biotechnology, human life, or human sexuality, I find that some advocates whose views differ from mine have substituted political ideology for science even though they claim to rely on the latter. If one thinks about human anatomy, for example, and considers the difference between the male and the female and what these differences mean beyond what the individual person would like them to mean, the reasonableness and truthfulness of the views held and presented by the Magisterium become all the more apparent. But, I recognize that there are some folks who choose to take a different path, but, in doing so, they deny the authority of something beyond themselves because they are the only authority, or so it seems. Perhaps the hierarchy have not had to cite studies in support of some of their claims because the challengers have raised little or nothing that requires rebuttal with such studies.

Eduardo did not raise this topic in his post of yesterday; however, a number of us have recently discussed the New York Times article of December 1 entitled “Supporting Boys or Girls When the Line Isn’t Clear.” I decided to examine more carefully some of the “progressive” schools discussed in this article that encourage their students “to be in touch with their inner selves.” I was fascinated by the depiction of “Traditional vs. Progressive/Constructivist Classrooms” that the Aurora School has on its web page. The Aurora School identifies itself as “progressive/constructivist.” In a nutshell, however, their depiction is flawed because it is based on false assumptions about “traditional” education. But these false assumptions are nevertheless permitted by intelligent people to support the “truths” of their extraordinary but flawed claims.

I’ll conclude by coming back to my first point which was Eduardo’s last. I consider myself fortunate that the Mirror of Justice forum exists, for a number of reasons. First of all, it enables me to present my ideas that deal with the law and the correlative Catholic intellectual tradition. It is often hard to come by such a forum including the contemporary academy. Second, this forum provides me with the insight of others—both MOJ contributors and readers—which I value because these other perspectives enable me to test the soundness of the positions that I take and hold. Third, it serves as one part of the vineyard where I and other disciples try to overcome some of the evil in the world with a bit of good. And, fourth, by offering this response, it reminds me that I might have to consider additional views to the things I have said here and respond to them in what I hope is a civil and amicable exchange. RJA sj

Shame and Simpson

By Rick Garnett

Law prof Stephanos Bibas (Penn) is quoted in this opinion piece in The Washington Post, "Abandoned OJ Project Shows Shame Still Packs a Punishing Punch." Here is a bit:

The whole project was pure shamelessness. A controversial former football star, who many believe got off scot-free after killing two people, writes a book about how he might have committed the murders. It was an end zone dance in the worst possible taste. Everyone was outraged but had to concede that O.J. Simpson, once acquitted, was beyond the reach of the law.

But Simpson and his publisher, Judith Regan, were within reach of another powerful tool that is not much used in American society: shame. Facing growing outrage and scorn, News Corp. chief executive Rupert Murdoch canceled the book project last week.

For Stephanos Bibas, a law professor and former prosecutor, the saga was grounds for celebration, because it showed that shame remains a powerful tool in America.

For nearly two centuries, using shame as a weapon against wrongdoing has steadily fallen into disfavor in the United States, even as it continues to be an essential part of social discourse in more traditional societies. After the rise of penitentiaries around 1800, the idea of shaming wrongdoers was replaced by more impersonal forms of punishment such as incarceration.

But in the past decade or two, a number of scholars have become interested in the uses of shame, especially in the criminal justice system. Bibas and others think the steady erosion of shame in U.S. courts and society has proved financially costly to the country, deprived victims of a sense of vindication and kept wrongdoers from feeling remorseful.

"I was very pleasantly surprised to see shame, and the shaming of Rupert Murdoch, triumph over O.J.'s shamelessness," Bibas said. "There are, apparently, some things that still go too far."

There's more; check it out. For an earlier MOJ post on this topic, click here.

NYT on Workplace Chaplains

By Amy Uelmen

An interesting and sympathetic piece in today's New York Times, At Boss's Invitation, Chaplains Come into Workplace and onto Payroll:

"From car parts makers to fast food chains to financial service companies, corporations across the country are bringing chaplains into the workplace. At most companies, the chaplaincy resembles the military model, which calls for chaplains to serve the religiously diverse community before them, not to evangelize."

It would be interesting to probe the working definition of "evangelization" - apparently it would not embrace the featured pastor's description of his work at a Tyson's chicken processing plant: "I treat everyone the same and my hope is that they will see in me the love of God."

Amy

Bill Moyers at West Point

By Michael Perry

[I meant to post last week on Bill Moyers's truly extraordinary speech at West Point--but I forgot. MOJ-readers may be interested in what Martin Marty has to say, below, about the speech. I hope you will follow the link to the speech, print it out, and read it at your lesiure.

I recall that Richard John Neuhaus and George Weigel, among other prominent Catholics, were cheerleaders for Bush in Iraq. What are they saying now, after over three and a half years of gross incompetence and countless deaths?]

Sightings 12/4/06

Bill Moyers's Message
-- Martin E. Marty

Let me start unconventionally this Monday by passing on a link [click here] Let me also continue unconventionally. Most of the 375-plus "sightings" from the past almost eight years have fulfilled my assignment to go scouting for religiously themed items in the public sphere -- but this time the scope is not clearly or purely religious. The link above takes you to excerpts from a speech Bill Moyers delivered as the Sol Feinstone Lecture on the Meaning of Freedom at the United States Military Academy on November 15. Moved, sometimes to tears and sometimes by the rage it inspires, I sent it on to many addresses on my list. Never have I had so many "thank you's" and "let everyone know's" as I did this week. That is why I am breaking precedent here and calling further attention to the speech.

In it, Mr. Moyers shows empathy, almost tender regard, for the consciences, assignments, and paradoxes that go with becoming a military officer during the Iraq war. Aware that any questioning of the prosecution of that war used to draw overwhelming public criticism of a sort which challenged the patriotism of the critic -- and such questioning still draws some, even though most of the public has itself done such questioning -- Moyers displays his love for the nation and its freedoms, which is the overall topic of the Feinstone lectures.

There is much historical accounting here, for which the speaker acknowledges the help of historian Bernard A. Weisberger. One hears of adventures and misadventures, conflicts and moments of consensus, all the way back to the American Revolution and through the Mexican War and the Vietnam War, itself prosecuted by conscience-troubled, now older-but-wiser Moyers, who was in the Johnson administration in the bad old days.

Part of what set Moyers off was the judgment by media mogul Rupert Murdoch that the casualties in Iraq were "minute" -- a dismissal that inspires Moyers to provide some close-ups of people who have lost someone close to them, citizens who cannot live with the word "minute" as an R.I.P. wave of the hand.

The focus here is not on the men and women who have signed up to be cadets; Moyers makes clear that he is not a pacifist or a dissenter against all forms of military engagement. But, getting to his own field of specialization, he is disturbed that the present administration is not heeding warnings of ancients like James Madison and moderns like Dwight Eisenhower and others who feared the threat that comes from placing too much power of decision in the hands of the executive -- meaning, in the end, chiefly in war-making.

Then he does turn to the paradoxes that military officers face, speaking some "unpalatable" words when he "would prefer to speak of sweeter things." Here he invokes one line of a sacred text, out of context but still reinforcing: "You shall know the truth and the truth shall set you free."

I think some credit must go to West Point leaders who invited someone they knew would be a critic, and to the audience, who will not find their wrestling with conscience, calls to duty, and love of country easier. Others will have the chance to give their versions of the truth, but Moyers offers a very bracing one.

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

Sunday, December 3, 2006

DSM on Sexual Disorders

By Eduardo Penalver

Patrick -- since the DSM does not categorize homosexuality as a sexual disorder, does that mean the magisterium cannot be excused for continuing to treat it as one?

This actually leads into a response to Fr. Araujo's response to the Commonweal editorial (this is an heroic segue). He says:

But in the meantime, I will offer a thought on the allegation about “human experience.” “Human experience” and powerful political lobbying may lead to the decriminalization of certain actions in specified contexts. For example, abortion and adultery and other extra-marital sexual activity were once crimes; but now, in some instances at least, they are not. That does not mean that they are no longer sins. That is a matter for God, not “science” and not “human experience”, to decide.

Surely for a Church that professes to find its sexual morality in the tenets of "natural law," and not merely in the dictates of revelation, the truths revealed by "science" and "human experience" are at least relevant in discussions of what is the truly and authentically human mode(s) of sexual expression.

After all, it's the increased knowledge of embryology, due to science, that allow us to understand that the destruction of an embryo, even before "quickening" or the emergence of a human bodily form, constitutes the destruction of a developing human being and not just another form of contraception. The magisterium's teachings on homosexuality often purport to be rooted in empiricism (see, e.g., the CDF's statements about the harmful impacts of homosexual adoption on children raised by same-sex couples), although the hierarchy has not (to my knowledge) cited any actual studies in support of those claims.

If these ethical discussions are really just about what (the magisterium thinks) God commands, then what the Church has to say about sexual morality (or social justice, or anything else for that matter) become simple matters of the religious commitments of our particular church and would seem to have no place in legal discussions within our pluralist democratic society -- except, I suppose, insofar as they motivate Catholic voters. If that were the case, though, I'm not sure what the role would be for a web site like this one, or for something called "Catholic Legal Theory."