This is hours of fun.
For a "Catholic Legal Theory" connection, I'll add this (cribbing, sort of, from Alasdair MacIntyre's "Three Rival Versions" book): "In the end, it's St. Thomas or Nietzsche." Discuss.
Thursday, October 19, 2006
The Nietzsche Family Circus
Freedom, Authority, Community
Earlier this week Greg Kalscheur quoted from John Courtney Murray's article, Freedom, Authority, Community. If you'd like to read the whole article, you can do so here.
Rob
Archbishop Desmond Tutu: "Ashamed" to be Anglican
CAPE TOWN, South Africa -- Archbishop Desmond Tutu says in a new book that his church’s rejection of gay priests in 1998 made him “ashamed to be an Anglican.”
That comment, as well as others critical of the worldwide Anglican Communion’s bickering over the role of gays and lesbians in the church, are related in a new biography of the South African prelate, called Rabble-Rouser for Peace, written by his former press secretary, John Allen. The biography is scheduled to be released close to Tutu’s 75th birthday in early October.
In the book, Tutu is candid about his gradual acknowledgment “that sexual orientation, like race or gender, was a given,” Allen writes.
Because he had retired as archbishop of Cape Town in 1996, Tutu refrained from public comment after Anglican prelates rejected “homosexual practice” as “incompatible with scripture,” in 1998. However, in a letter to the spiritual head of Anglicanism, former Archbishop of Canterbury George Carey, Tutu wrote, “I am ashamed to be an Anglican,” according to Allen.
Wednesday, October 18, 2006
Response from Professor Green on Embryos as Persons
I have received this response from Professor Christopher Green
The key question for the moral
status of the human embryo is not whether the human embryo is a human being, but
whether the embryo is a person. And it seems plain that it is possible to
be a person yet lack a brain or nervous system; for instance, an alien
form of life could lack a nervous system of the sort that human beings have, yet
be a person. The key question is whether the embryo has something that is
the moral equivalent of the brain of the comatose person. As I see it, the
brain of the comatose person is morally important because it is the physical
basis for future action characteristic of a person. But an embryo does
have that, because the embryo possesses the epigenetic primordia
of a brain--the physical structures in the embryo that will cause the
embryo, through self-directed processes, to grow into a being with a
brain. Once we realize that present possession of a brain itself
isn't what is important, but instead what is morally significant is what a
brain allows a being to do in the future, then the brain-possession
criterion of (human) personhood looks implausible. Beings with the
epigenetic primordia of brains and nervous systems should count
too.
Christopher R. Green
Assistant Professor of Law
University of Mississippi School of
Law
Lamar Law Center
P.O. Box 1848
University, MS 38677
Of Embryos and Brains
While not "not arguing in favor of the brain/nervous system position," Steve says "[i]f it is argued that a human organism becomes a human being only when it develops a nervous system and a brain, the failure to recognize embryos as human beings does not undercut the ground for believing that infants etc. are human beings."
There is a problem with this logic, I think. It is true, a person could say "I will not consider a human organism a human being entitled to full worth and dignity until it develops a nervous system and a brain. Therefore, I conclude that an infant is a human being but a first trimester fetus is not." But, this opens the door to someone else coming along and saying: "No, you have it wrong, the human organism does not become a human being until it can engage in rational thought." And, there are any number of variations. The point is, you have switched from saying that the human organism has worth because of what it is to saying that a human organism has worth because it happens at the moment to possess certain characteristics, and this does undercut the argument that infants possess full moral worth and dignity. What do you think Steve?
Is a brain and a nervous system a necessary condition of being a human being?
I have certainly benefited from the argument put forward in our discussion and am thankful for the effort that Eduardo, Michael, and Robert have put into it.
Robert George says that “To suppose that embryos are something other than human beings---rational animal organisms of the human species---is to undercut the ground for believing that infants, severely retarded persons, and comatose individuals are human beings.” He says, “Infants possess, as do embryos, the primordia (which are most fundamentally epigenetic) for self-directed development to the point at which they can immediately (though intermittently, of course, due to the need for sleep) perform characteristically human mental acts. They possess in radical (=root) form the basic natural capacity that will in the course of development unfold to the point at which, if all goes well, they will be able to engage in conceptual thought, deliberation, and choice. It is the possession of the basic natural capacity (shared by all human beings, even if blocked in the severely retarded), and not immediately exercisable capacities (possessed by some human beings but not by others, and possessed by some to a greater degree than by others), that determine the kind of substance a human being is, namely, a rational animal organism.”
Bus Drivers & Conscience
I am expecting a significant backlash against claims of conscience, thanks in large part to cases like this one:
A city bus driver who complained about a gay-themed ad got official permission not to drive any bus that carries that ad, according to an internal memo confirmed Tuesday by Metro Transit.
It is important, though, to distinguish between voluntary accommodations of employees' conscience-driven requests and state-mandated accommodations. The latter are much more problematic if we value a vibrant marketplace of moral norms.
Rob
New Boston College Speaker Policy
Today's Chronicle of Higher Education reports:
Student groups at Boston College that invite speakers opposed to Roman Catholic doctrine can be forced to bring in another speaker who supports the church's teachings or risk having the event canceled altogether, according to a new policy.
The new policy was issued in response to a request last year by a student group to invite an abortion-rights advocate to the campus. The group was not officially recognized by the university, and the request was turned down. Administrators realized at the time, however, that the university did not have any explicit power over what kinds of speakers official student groups could invite, according to Jack Dunn, a college spokesman.
Under the new policy, "if a student group was recognized and wanted to bring in a pro-choice perspective, they would be allowed to do it," said Mr. Dunn. "All we ask is that they present the Catholic point of view as well."
Here's the text of the new policy, showing changes from the prior policy. (You may have to register to access this.)
Lisa
Bainbridge on "The Communitarian Connundrum"
Here's our own Steve Bainbridge, commenting on communitarianism:
. . . Civic virtue also can be created by secular communities. As James Q. Wilson observes, "something in us makes it all but impossible to justify our acts as mere self-interest whenever those acts are seen by others as violating a moral principle." Rather, "[w]e want our actions to be seen by others—and by ourselves—as arising out of appropriate motives." Voluntary communities strengthen this instinct in two ways. First, they provide a network of reputational and other social sanctions that shape incentives. Virtuous communities will use those sanctions to encourage virtue among their members. Second, because people care more about how they are perceived by those close to them, communal life provides a cloud of witnesses about whom we care and whose good opinion we value. We hesitate to disappoint those people and thus strive to comport ourselves in accordance with communal norms.
The nanny state is a poor substitute, at best, for the virtue inculcating power of faith and voluntary community. We may fear the faceless bureaucrat, but he does not inspire us to virtue. Conduct that rises above the lowest common moral denominator thus cannot be created by state action. But while the state cannot make its citizens virtuous, it can destroy the intermediary institutions that do inculcate virtue. As Richard Epstein observes, "Communities can be destroyed from without; but they cannot be created from without; they must be built from within."
To be clear, I am not arguing for some libertarian utopia in which the state has no role beyond that of a night watchman. As Edmund Burke once observed, there is "a limit at which forbearance ceases to be a virtue." At that limit, the state properly steps in.
The Calvinist principle of sphere sovereignty offers one way of thinking about the line between legitimate and illegitimate uses of government power. Social institutions—including both the state and the corporation—are organized horizontally, none subordinated to the others, each having a sphere of authority governed by its own ordering principles. Expansion of any social institution beyond its proper sphere necessarily results in social disorder and opens the door to tyranny. The trouble with the state thus is not its existence, but its expansion beyond those functions prescribed by custom and convention, which were legitimized by ancient usage, into the pervasive nanny state perpetually grasping at aspects of social life to drag into its slavering maw.
From a perspective founded on sphere sovereignty, the progressive communitarian's basic flaw is his willingness to invoke the coercive power of the state in ways that deny the right of mankind acting individually or collectively through voluntary associations to order society. In contrast, conservatives are unwilling to sacrifice ordered liberty at the altar of community. A conservative properly insists that individuals be left free to define for themselves what conduct shall be deemed trustworthy or honorable, rather than being forced to comply with, say, Geoffrey Stone's definition of what makes for a good community.
The NYT series on religious exemptions
This article, from the Business & Media Institute's web site, contains what I think are some powerful critiques of the Times' recent four-part series, "In God's Name," on religious exemptions.
And here is John DiIulio, in a piece called "The New York Times v. Religion: So Much Nonsense in a Four-Part Series":
Times readers might be interested to know that most state constitutions single out "faith groups" for special legal burdens and restrictions. About two-thirds of state constitutions have a generic no public funding clause. And most have a specific no funding for religious education clause. As University of Chicago law scholar Philip Hamburger summarized in his book Separation of Church and State, many such antireligion state constitutional provisions have their political roots in rabidly anti-Catholic 19th-century nativist movements. . . .
Times readers might be invited to imagine an America in which all of those ostensibly favored faith groups disappeared tomorrow. Who would suffer the most, and who would have to pay to replace the social services that they now provide? For instance, pick ten big cities, and ask how many low-income non-Catholics (Title I students, Medicaid-eligible patients, etc.) are served by Catholic elementary schools, high schools, colleges or universities, and hospitals? Next, try to figure out who is subsidizing or "accommodating" whom: How much would it cost to provide the same services without religiously mobilized volunteers and institutions in the mix? Studies being conducted by me and others at the University of Pennsylvania and Harvard University aim to estimate the "replacement value" of such Catholic "civic assets." Stay tuned. . . .
And here is Eugene Volokh (UCLA):
But note how unhelpful the appeal to separation of church and state is here. The exemptions discussed in the story generally involve the government's decision not to apply various regulations and restrictions (various child care center regulations, employment discrimination laws, financial disclosure laws for charities, and the like) to religious institutions. A few involve exemptions for religious individuals, but most involve religious institutions.
Such decisions to leave church free from state regulation, it seems to me, are separation of church and state, at least under one plausible definition of "separation." It is abolishing the affirmative action for religion, by applying laws to religious institutions the same way it's applied to other institutions, that would bring church and state closer, here in the sense of having the state have more authority over the church. In fact, one form of "separation of church and state" that many "separationist" judges and legal scholars have urged is (1) discriminatory exclusion of religious institutions from many generally available government-run benefits (such as school choice funds), but (2) preferential exemption of religious institutions from many generally available government-imposed restrictions (such as many aspects of employment laws, historic preservation laws, and the like).
Of course, one can define "separation of church and state" to mean "the state ignoring people's and institutions' religion and religiosity, and treating everyone equally regardless of their church affiliation or lack thereof." This would mean (1a) evenhanded inclusion of religious institutions in generally available government-run benefits, (1b) prohibition on preference for religious institutions in such benefits, (2a) evenhanded application of generally applicable laws to religious institutions and people (though perhaps with some exemptions to some laws for all conscientious objectors to that law, whether the objection is religious or secular philosophical), and (2b) prohibition on laws that single out religious institutions and people for special burdens. Some judges and legal scholars have endorsed this view, though generally without calling it "separation." (My view comes close to this one, though with a few exceptions that I don't want to dwell on here, since this post is about the phrase "separation of church and state" rather than about any particular legal proposal.)
One can also, I imagine, define "separation of church and state" as "discriminatory exclusion of religious institutions from generally available funding programs, but evenhanded coverage of religious institutions and people in regulatory programs." That seems an odd definition to me, but who can say for sure?
My point here is that "separation of church and state" is more a slogan than a well-defined term.
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