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, October 13, 2006

Hypothetical

By Eduardo Penalver

Michael S. says:

If we as a society hold human life sacred (even in some secular sense), we can’t discriminate between types or stages of human life.  We cannot conclude that some types human organisms have more worth than other types or that human organisms at some stages of development have more worth than those at other stages.

This brings to mind a hypothetical that I've seen float around lefty blogs a bit as a means of challenging just this claim, and I'm curious how you all would respond.  When I've seen it in the past, I've often thought it's a bit silly, but it does seem relevant to this discussion.  Here it is:  you are outside a burning building, and, inside the building are two bedrooms.  In one bedroom are 2 six-month-old infants.  In another room are 2 blastocysts in a petri dish.  You have time to make one trip into the house before it comes crashing down.  Do you grab the blastocysts or the six-month-old infants?

I assume that everyone would grab the infants (the point of the hypothetical).  Is this a prohibited form of discrimination between stages of life or is there some other justification for favoring the infants that does not violate your principle of equal regard between life stages?  Note, I don't think favoring the infants here results in the conclusion that stem cell research is permissible; there is obviously a difference between chosing whom to save and actually intending to cause harm to something or someone.  But I do think it goes a bit far to say that one cannot reasonably distinguish among life stages, favoring some over others, at least within certain limits.

Michael then goes on to ask:

How does one who supports abortion or embryonic stem cell research maintain that unborn human organisms and only unborn human organisms are not entitled to the respect and dignity afforded all other human organisms?

Two points about this.  One, I am not aware of an argument (even by people who support stem cell research and abortion) that unborn human beings are not entitled to any respect or dignity at all.  Nor do I think that the belief that it is reasonable to distinguish between stages of development necessitates support for stem cell research or abortion (see above).  Two, I am willing to offer a set of possibilities with the caveat that I am not endorsing them.  These are more by way of a brainstorm, although I find some of them to be at least plausible (especially the first three).  With that clarification, I can think of several possible normative distinctions that would point towards a different line than conception as the significant one for entitlement to treatment as a human being:
    (1) greater than 50% likelihood of developing, in the normal course of events, into a mature human being (which, depending on the science, arguably point towards a line drawn between pre-implantation and post-implantation embryos);
    (2)individual (presumably genetic) identity (some have used this to draw a line distinguishing embryos before and after the possibility of twinning or -- and I'm not sure what they call this, though it does occur on rare occasions -- the combination of two separate embryos into one new embryo);
    (3) possession of physical structures necessary for conciousness or the ability to feel pain; etc. (which would seem to point towards a somewhat later stage in development, in which the nervous system is more developed);
    (4) possession of a bodily structure recognizeable as human; or
    (5) viability outside of the mother's womb.
There are probably several others.  These are just the ones that occurred to me off the top of my head.

Our Social Safety Net

By Eduardo Penalver

Not sure if you've seen this.  It pretty much speaks for itself, I suppose.

Those "Nutty", "Ridiculous", "Goofy" Evangelical Christians

By Michael Perry

October 13, 2006

White House Denies Book's Allegations 

By THE ASSOCIATED PRESS

WASHINGTON (AP) -- A former Bush aide claims that evangelical Christians were embraced for political gain at the White House but derided privately as ''nuts,'' ''ridiculous'' and ''goofy.''

The allegations -- denied by the White House on Friday -- are in a new book by David Kuo, a conservative Christian who was deputy director of President Bush's Office of Faith-Based and Community Initiatives until 2003.

The book describes Kuo's frustration at what he felt was lackluster enthusiasm in the White House for the program, which seeks to steer more federal social service contracts to religious organizations. Details from the book, ''Tempting Faith: An Inside Story of Political Seduction,'' were reported by MSNBC ahead of Monday's publication date.

Kuo singled out staffers in the office of Karl Rove, Bush's top political adviser and deputy chief of staff, as particularly condescending toward evangelical Christians, viewing them as necessary to help win elections but ridiculing them behind the scenes.

Kuo also described how officials from the faith-based office were systematically dispatched to hold large events in areas where there were key House and Senate races before the 2002 elections.

White House press secretary Tony Snow said he had not yet seen the book. But he said Rove was asked if he made the comments and replied he had not. Kuo, however, doesn't single out anyone by name as making the condescending comments.

''These are people who are friends. You don't talk about friends that way,'' Snow said.

Bush's spokesman also said there was no attempt to exploit the office to score political points, and that the president had specifically directed it not be politicized.

Snow denied Kuo's charge that the White House's religious charities program wasn't given the status it deserved, saying Bush's personal commitment to the policy was solid. Kuo has complained publicly in the past that the White House did not push hard enough for promised federal funding for religious groups to help the poor.

Snow read from what he called a ''very warm letter'' Kuo wrote to Bush when he left the White House. Kuo told the president he was proud of what the initiative had accomplished and said ''it's your staff's keen awareness of your unwavering support for this initiative that's made the difference.''

Snow concluded that the reports on the book ''seem at odds with what he was saying inside the building at the time he departed.''

Kuo's account of how the faith-based office has been regarded inside the White House recalls that of another high-level alumnus of the program. John J. DiIulio Jr., the faith-based office's first director, who quit in 2002, told Esquire magazine that ''Mayberry Machiavellis'' led by Rove based policy only on re-election concerns. After his comments caused an uproar, DiIulio apologized for making what he said were rude remarks.

Answering Steve re abortion and embryonic stem cell research

By Michael Scaperlanda

In an earlier post Steve says:  “I am genuinely interested in determining what arguments can be made for the Catholic position [on embryonic stem cell research and maybe abortion more broadly] outside resort to authority.”  And, I am thankful for his continuing to press the issue.  Here is an attempt to respond. 

Pope John Paul the Great, in his Encyclical Letter, Centesimus annus, paragraph 44 says:

“[T]otalitarianism arises out of a denial of truth in the objective sense. If there is no transcendent truth, in obedience to which man achieves his full identity, then there is no sure principle for guaranteeing just relations between people. Their self-interest as a class, group or nation would inevitably set them in opposition to one another. If one does not acknowledge transcendent truth, then the force of power takes over, and each person tends to make full use of the means at his disposal in order to impose his own interests or his own opinion, with no regard for the rights of others. People are then respected only to the extent that they can be exploited for selfish ends. Thus, the root of modern totalitarianism is to be found in the denial of the transcendent dignity of the human person who, as the visible image of the invisible God, is therefore by his very nature the subject of rights which no one may violate — no individual, group, class, nation or State. Not even the majority of a social body may violate these rights, by going against the minority, by isolating, oppressing, or exploiting it, or by attempting to annihilate it.”

The history of humanity is replete with images of the powerful using the less powerful as objects, exploited for their own selfish ends.  In many cultures, if you were not a citizen, you didn’t count in any meaningful sense (you were “other”) and could be treated in less than human ways.  In the America’s Bartolome De Las Casas argued in favor of the humanity of the Indians against those who treated them as “other” and less than fully human.  The vestiges of our own sinful history of treating blacks as less than human and exploiting them as property are still very much with us.  And, we have the Nazi’s looking at the Jews as objects to be killed for their own selfish ends.

In short, humanity has shown itself time and again to have succumbed to the type of totalitarianism spoken of by the late Pope, as we have looked upon one part of the human family (one type of human organism) as less than human and, therefore, subject to exploitation.  Today, it is the tiniest and most helpless of humans who are subject to such exploitation in the name of some greater good.  The German Constitutional Court understood the problem in 1975 when, remembering the Nazi past, it said the right to life of the fetus trumps the right to privacy of the mother.

If we as a society hold human life sacred (even in some secular sense), we can’t discriminate between types or stages of human life.  We cannot conclude that some types human organisms have more worth than other types or that human organisms at some stages of development have more worth than those at other stages.

Our Declaration of Independence says that all are created equal.  And, I do think to hold the position of the Framers or to hold the position of JPII and the Church, one must be open to the transcendent, to the possibility that there is a God who created us and endowed us with certain dignity.  In broad general outlines, one can reach these truths philosophically without resort to the authority of Revelation as mediated by the Magisterium.  But, once we come to this conclusion that human organisms are sacred, we are on shaky ground when we begin to discriminate and distinguish between those human organisms worthy of respect and those who are not.

A full-fledged materialist will not buy into the above arguments because he is not open to the transcendent.  For him, values are relative.  He may discriminate between an embryo, a fetus, and a born human being, but he may also discriminate between an infant, a child, and an adult, or between a black, a white, and a brown.  Bruce Ackerman, in his book, Social Justice in a Liberal State sums up this position well.  (I don’t have the book in front of me so I am doing this from memory).  He says that “rights” belong to citizens but that citizenship is a function of politics not biology.  And, only those who have the reasoning capacity to engage in his “neutral dialogue” can be citizens in his state.  Therefore, those without the mental capacity to engage in such dialogue cannot be citizens and live at the sufferance of citizens.  To Ackerman, treating the mentally retarded well is a matter of legislative grace and not legislative duty.   

Now for my question.  How does one who supports abortion or embryonic stem cell research maintain that unborn human organisms and only unborn human organisms are not entitled to the respect and dignity afforded all other human organisms?

TNR Publisher on Catholic Universities

By Eduardo Penalver

I thought the MOJers from Catholic institutions would be interested in this little ditty by Marty Peretz, the publisher of the New Republic: (HT:  American Prospect)

Please, I don't mean to offend anyone. But the Catholic college and university is not one of the faith's big achievements in America. Look at any one of the ratings charts (there are many) and see how low these institutions fare on the competitive scales and how few of them rate at all. It's true that there are two or three Catholic law schools in the middle range. But that's it. Catholic institutions certainly haven't made a mark in the life or physical sciences, or, for that matter, the social sciences either. Of course, denominational schools have it especially hard when the great elite institutions--also mostly church-based in origin--no longer discriminate against anyone and, in fact, compete ferociously for students and faculty from wherever they come.

Tamanaha on Legal Instrumentalism

By Rob Vischer

One recurrent theme of our conversations on MoJ has been the extent to which the law can and should be viewed as simply a means to accomplishing noble ends.  This theme is at the center of an important new book by my friend and former colleague Brian Tamanaha, Law as a Means to an End.  The book "traces the rise of the instrumental view of law in the course of the past two centuries, then demonstrates the pervasiveness of this view of law and its implications within the contemporary legal culture, and ends by showing the various ways in which seeing law in purely instrumental terms threatens to corrode the rule of law."  Larry Solum writes that "[t]his is not just an important book--it is THE important book of legal theory for this decade."

Rob

Blind Submission amd Reasonable Deference

By Michael Scaperlanda

In his most recent post, Steve reiterates an earlier posting: “If the person has followed the Magisterium through an exercise of independent judgment accompanied by deference, I do not think such deference is incompatible with good citizenship or American democracy (though many might disagree). I do think it is hard to reconcile absolute submission to the Magisterium with American democracy.” 

I agree, but I want to go deeper and ask whether blind absolute submission to the Magisterium is inconsistent with Catholicism itself.  I would argue yes, that such a submission is inconsistent with Catholicism.  Catholic Christianity is, I would suggest, a reasonable faith – we can articulate reasons why we believe that Catholic Christianity is true.  We should not come to it blindly.  Faith comes in when I conclude that Catholic Christianity is not only reasonable but is true – that I am going to stake my life – form my life – around it.  I have a colleague, for example, who is not a Christian.  He has read C.S. Lewis, Luigi Giussani, and others and has concluded that Christianity is reasonable, but he has not – to date, anyway – made the leap from reasonable hypothesis to truth.

Since I have concluded that the reasonable proposal of Catholic Christianity is true, I defer (reasonably, I think) to the Magisterium’s judgment on faith and morals, knowing that the Magisterium (because of its office) receives certain protective graces from the Holy Spirit that I don’t receive, and that it has had the advantage of a 2000 year history working in multiple cultures with access to some of the finest minds in history helping it form its judgments.  How can my “independent judgment” on particular current moral or theological issues stand against this?  After all, I am a bear of very little brain (as Winnie the Pooh would say), and I have been born into a particular family, culture, and society, possessing their own biases and blind spots.  The reasonable thing for me to do, given my belief that Catholic Christianity is true, is to defer to Church’s judgment on faith and morals. 

As I have said before on MOJ, having accepted as true the basic tenets of Catholicism, where I “disagree” or fail to understand a Catholic teaching on faith or morals, my first assumption is that there must be something wrong with my “independent judgment,” and then I set out on a journey of rigorous study and prayer to see if I can reconcile my “independent judgment” with the Church’s teaching.

Conscience and Democracy: Continuing the Dialogue with Father Araujo

By Steve Shiffrin

Thanks to Father Araujo for his response particularly his citation to John Courtney Murray. I respond because I think Father Araujo may misapprehend my position. He makes a number of points which disagree with positions I have never taken (though he appears to think I have). I am sorry if I was unclear.

He says, “[I]f the Catholic candidate were to promote not the theological but the moral teaching that is of general application, I do not see a Constitutional impediment, nor do I envisage any prudential problem that would make the Catholic candidate unelectable for exhorting this moral perspective in his or her campaign.” I agree and have never taken a contrary position.

He says, “I would add that there appears to be little if any problem when people in public life, be they office holders or not, promote concerns about the environment, public support for educational initiatives, care for the elderly, and access to medical care, etc., that are also founded on principles from the moral teachings of the Church. Why should moral arguments dealing with abortion, euthanasia, or embryonic stem cell research be any different?” I agree and have never taken a contrary position. And, by the way, I have not offered a conclusion about the teachings of the Vatican on abortion, euthanasia, or embryonic stem cell research (though I have done my best to prompt a dialogue on abortion and embryonic stem cell research).

Father Araujo says, “I share Steve’s view that ‘the Church can play a prophetic role; it can be influential; it can speak truth to power.’ I also realize that the Church, regardless of whether it has internal division, exists in a pluralistic and often pragmatic country. But, this realization is no excuse that the Church and its members who exercise a public life must be silenced from participating in our national society when they speak from and contribute on the basis of the Church’s rich moral teachings.” I agree and have never taken a contrary position.

As I said in response to Richard, “I believe that Catholic citizens have a religious duty to act on their religious beliefs in political life and a moral right to express their religious views in political life.” As to American democracy, I said much “depends on why the person has followed the Magisterium. If the person has followed the Magisterium through an exercise of independent judgment accompanied by deference, I do not think such deference is incompatible with good citizenship or American democracy (though many might disagree). I do think it is hard to reconcile absolute submission to the Magisterium with American democracy.”

That said, it would never occur to me to maintain that citizens who engaged in absolute submission to the teachings of the Vatican should be “silenced from participating in our national society when they speak from and contribute on the basis of the Church’s rich moral teachings” even if there conclusions were based on absolute submission to Vatican teachings. As I said, I do think that if Catholics generally held to such a position that anti-Catholic prejudice would increase and that any candidate who stated that he felt an absolute obligation to conform his views to the moral teachings of the Vatican could not be elected. As I said before, however, I do not think that the test of the rightness of Catholic ecclesiology is whether it conforms to American conceptions of democracy. I am simply observing that the ecclesiology does not fit with American conceptions of democracy.

Thanks to Steve—a reply to his posting

By Robert John Araujo, SJ

I am grateful for Steve’s recent response to my previous posting. I take this opportunity to respond to him, and I will do my best to answer his questions and make a few comments about his perspective on some very important issues.

I begin with his observation that I was silent on the matter of whether the doctrinal perspective (of the Church) is consistent with American democracy. Steve and I are not the first to address this question. As I recently mentioned, Senator John Kennedy’s address to the Protestant ministers frames this issue in one context. Another context was raised by John Courtney Murray in his foreword to “We Hold These Truths—Catholic Reflections on the American Proposition.” [1960, pp. ix-x] I believe that Fr. Murray offered a vital insight when he said this: “The question is sometimes raised, whether Catholicism is compatible with American democracy. The question is invalid as well as impertinent; for the manner of its proposition inverts the order of values. It must, of course, be turned round to read, whether American democracy is compatible with Catholicism.” It might also be worth taking into account which came first: Catholicism or American democracy.

What does this mean in the context of the discussion between Steve and me? I think it means this: there are two facets of the Catholic doctrinal perspective regarding the context of American democracy—the first is the theological perspective; the second is the moral teaching. In regard to the first category, I consider the “theological” as that corpus of doctrine that is constitutive of the Catholic faith, e.g., the doctrine of the Trinity; the doctrine of the resurrection; the teachings on sin and grace; etc. The second facet takes account of the moral teachings of the Church which have a more ecumenical, even universal, application, e.g. Pacem in Terris (John XXIII) and Populorum Progressio (Paul VI), both of which were addressed not only to members of the Church but also to “all men of good will.” As I also mentioned in my previous post, both President Kennedy and the Department of State thought there was something to consider from the encyclical Pacem in Terris.

I agree with Steve that if a Presidential candidate, who is Catholic, were to publicly endorse and (my view) to promote the theological doctrine in seeking office, he or she would likely encounter great difficulty. Moreover, there would, I think, be problems with the Establishment Clause of the First Amendment in this regard. However, I hasten to add that if the Catholic candidate were to promote not the theological but the moral teaching that is of general application, I do not see a Constitutional impediment, nor do I envisage any prudential problem that would make the Catholic candidate unelectable for exhorting this moral perspective in his or her campaign. By way of illustration, let us consider the civil rights movement of the 1950s and 1960s. Surely, this important development in our nation’s political life had a strong connection with faith communities that were asserting civil rights on the basis of moral teachings that emerged from faith communities.

Moreover, I would add that there appears to be little if any problem when people in public life, be they office holders or not, promote concerns about the environment, public support for educational initiatives, care for the elderly, and access to medical care, etc., that are also founded on principles from the moral teachings of the Church. Why should moral arguments dealing with abortion, euthanasia, or embryonic stem cell research be any different? Any effort to arrest this discussion would be reflective of the circumstance John Paul II identified as thinly disguised totalitarianism; moreover, it would lead to the crossroads where democratic institutions stand or fall on the basis of the values that they embody and promote. (Evangelium Vitae, NN. 20, 46, and 70) Christopher Dawson made similar observations much earlier in the early twentieth century.

While I do have theological positions on doctrinal matters, I also hold positions on the moral teachings of the Church. The latter are the views upon which I rely in these postings. It appears to me that Steve and I might also be examining in our discussion the idea of the freedom of the citizen, both Catholic and other. Freedom is a vital component of our Nation and a value cherished by its members. But, I promote the view that there are two kinds of freedom involved here. One follows a more Lockean view of “freedom from”; this is an understandable view that I think many Americans, including some Catholics, hold. But it is an incomplete understanding of freedom, for there is also a “freedom for”, which includes a freedom to accept into one’s life the moral teachings that, I think, are crucial to the success of American democracy. “Freedom from” contributes to the notion of citizen as the autonomous and isolated individual; “freedom for”, on the other hand, promotes the idea of citizen as the involved member of society who pursues justice and right relationship not only for the self but for everyone else.

Indeed, all citizens, and for that matter, all members of civil society have rights, but they also have responsibilities to others. This is essential to the success of the American proposition. For, if the American experiment in democracy is based on the notion of “freedom from”, I think it will ultimately fail; however, if it is based on “freedom for”, it will succeed. Pessimism is fueled by “freedom from” but optimism is born from “freedom for.”

I share Steve’s view that “the Church can play a prophetic role; it can be influential; it can speak truth to power.” I also realize that the Church, regardless of whether it has internal division, exists in a pluralistic and often pragmatic country. But, this realization is no excuse that the Church and its members who exercise a public life must be silenced from participating in our national society when they speak from and contribute on the basis of the Church’s rich moral teachings. That would be a capitulation not to a country dominated by a Protestant mentality but to one in which moral relativism has become absolute.

Finally, it strikes me that other contributors to MOJ as well as its readers might like the reference to John Courtney Murray’s discussion of conscience and freedom to which I previously referred. Fr. Murray’s notes appear in “The Documents of Vatican II—with Notes and Comments by Catholic, Protestant, and Orthodox Authorities” edited by Fr. Water Abbot, S.J. and Monsignor Joseph Gallagher. The specific footnote upon which I relied is footnote 5, which appears on page 679 of the hardback and paperback editions of the Abbot/Gallagher work. However, you may also want to look at footnote 58 on page 694-95, which further develops Murray's thoughts on freedom and conscience.

Once more, I extend to Steve my sincere gratitude for providing the opportunity for this useful exchange.    RJA sj

Thursday, October 12, 2006

First Things Denial

By Steve Shiffrin

For a denial by Richard John Neuhaus that First Things has tried to "'baptize' the liberal tradition by equating our constitutional order with Catholic doctrine," see http://www.firstthings.com/

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