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.

Thursday, September 28, 2006

Urban Tragedy

Michael J. Petrilli writes, on National Review Online, about the tragedy of urban Catholic schools closing.  As he suggests, it is not these urban schools that need closing.

The closures have little to do with the quality of education that these schools provide. Two decades of studies have shown them to be effective, especially for poor and minority children. Rather, broader demographic trends are to blame. Simply put, most Catholics have left the urban core for homes in the leafy suburbs, and urban parishes have dried up in their wake. No parishes, no parish subsidies, no parish schools — yet thousands of needy children remain downtown. On top of that, the schools’ pipeline of affordable teachers has run dry. Once upon a time, most Catholic-school instructors were members of religious orders, requiring little or no cash compensation; now there are more nuns over age 90 than under age 50 in the U.S., and only five percent of the schools’ teachers come from religious orders. Lay teachers must be paid a decent wage, pushing Catholic-school tuitions out of reach for many poor families.

Meanwhile, in some of the same poor neighborhoods where effective Catholic schools are getting the axe, failing public schools remain open, seemingly resistant to reform.

Wasn’t the “accountability movement” supposed to change that?

In a similar vein, I wrote, in this USA Today op-ed:

We might well sympathize with those for whom the closing of a parish is painful because of family memories or ethnic traditions, or those who must now find a new school. And maybe we regret the loss of a few older, attractive buildings. In the end, though, why shouldn't the reaction of outsiders simply be, "Oh well, that's life"?

Why should we care?

For starters, urban Catholic schools and their teachers do heroic work in providing education, hope, safety, opportunity and values to vulnerable and marginalized children of all religions, ethnicities and backgrounds. Similarly, Catholic hospitals have long cared for underserved and disadvantaged people in both urban and rural areas, and helped to fill glaring gaps in the availability of health care. It is too easy to take for granted these and similar contributions to the common good. We should remember that, as these institutions fold, the burdens on and challenges to public ones will increase.

We might also care about the closings for slightly more abstract but no less important reasons. In a nutshell: It is important to a free society that non-government institutions thrive. Such institutions enrich and diversify what we call "civil society." They are like bridges and buffers that mediate between the individual and the state. They are the necessary infrastructure for communities and relationships in which loyalties and values are formed and passed on and where persons develop and flourish.

Catholics and non-Catholics alike can appreciate the crucial role that these increasingly vulnerable "mediating associations" play in the lives of our cities. Harvard University Professor Robert Putnam and others have emphasized the importance of "social capital," both to the health of political communities and to the development of engaged citizens. In America's cities, it has long been true that neighborhood churches and schools have provided and nurtured this social capital by serving as places where connections and bonds of trust are formed and strengthened. As Joel Kotkin writes in his recent book, The City: A Global History, healthy cities are and must be "sacred, safe and busy." If he is right, Catholic parishes, schools and hospitals help make America's cities great.

Cities and civilization

A great quote:

[C]ivilization . .  . is achieved because city dwellers . . . have smoothed the edges of private desire so as to fit, or at least work in with all the other city dwellers, without undue abrasion, without sharp edges forever nicking and wounding, each refining an individual capacity for those thousands of daily, instantaneous negotiations that keep crowded city life from being a constant brawl or ceaseless showing match.  When a city dweller has achieved that truly heightened sensitivity to others that allows for easy access, for self and others, through the clogged thoroughfares of urban existence, we call that smoothness urbane. . . . Through the several millennia of our Western culture, to be urbane has been a term of high praise precisely because cities are such difficult environments to make work.

-                     Bart Giamatti

Samuelson on income inequality

Here is Robert Samuelson, on "Our Growing Inequality Problems."  Here's a bit:

[T]he annual numbers are less important in addressing the trickle-up question than long-term trends. Here are three that I think matter.

Living standards aren't stagnating. Over any realistic period -- say a decade -- they've risen for almost everyone. From 1992 to 2002, ownership of microwave ovens by the poorest tenth of Americans went from 39 percent to 77 percent, reports one Census Bureau study. VCRs went from 22 percent to 56 percent, computers from 4 percent to 21 percent. Households, when adjusted for their size, uniformly have higher incomes. From 1995 to 2005, the median income of four-person households rose 10.5 percent to $69,605; for three-person households, the increase was 9.6 percent to $58,917. These are real gains, though modest.

The rich are getting an ever-bigger piece of the economic pie. In 2005, the richest 5 percent of households (average pretax income: $281,155) had 22.2 percent of total income, reports the Census. In 1990, the share was 18.5 percent; in 1980, 16.5 percent. These figures exclude capital gains -- profits on stocks and other assets -- that have most benefited the richest 1 percent. With capital gains, their pretax income averaged about $1 million in 2003. That was about 20 times the average income of households in the middle of the economic distribution. In 1979, the ratio was 10 to 1.

The inflow of poor Hispanic immigrants, along with their (often) American-born children, has increased poverty. From 1995 to 2005, the rise in the number of Hispanics in poverty -- by 794,000 -- more than accounted for the entire increase in the U.S. poverty population. Poverty among blacks, though still high, declined. Among non-Hispanic whites, it held roughly steady. Health-insurance coverage has also been affected. Since 1995, Hispanics account for about 78 percent of the increase in the uninsured.

The bottom line: Productivity gains (improvements in efficiency) are going disproportionately to those at the top. We do not really understand why. Globalization, weaker unions, increasingly skilled jobs, the frozen minimum wage and the "winner-take-all society'' (CEOs, sports stars and movie celebrities getting big payouts) have all been cited as reasons. Costly employer-provided health insurance is also squeezing take-home pay in the middle.

What might government do? The Bush administration's enthusiasm for tax cuts for the rich could be tempered; to reduce the budget deficit, their taxes could be raised without dulling economic incentives. (For the record: I supported the first Bush tax cut and opposed his cuts on capital gains and dividends.) Equally, liberals and others who support lax immigration policies across our Southern border should understand that these policies deepen U.S. inequality.

But many familiar proposals would be mostly symbolic or hurtful. Raising the minimum wage might directly affect only about 5 percent of workers and might destroy some jobs. Protectionism might save a few well-paid jobs but would inflict higher prices on those least able to afford them. Still, no one should be happy with today's growing economic inequality. It threatens America's social compact, which depends on a shared sense of well-being.

Wednesday, September 27, 2006

Socrates or Muhammad?

One of the better things I've read, I think, about Pope Benedict's Regensburg speech is this essay, "Socrates or Muhammad?," by Lee Harris.  A taste:

On September 12, Pope Benedict XVI delivered an astonishing speech at the Uni versity of Regensburg. Entitled "Faith, Reason, and the University," it has been widely discussed, but far less widely understood. . . .

Benedict . . . is not issuing a contemporary Syllabus of Errors. Instead, he is asking those in the West who "share the responsi bility for the right use of reason" to return to the kind of self-critical examination of their own beliefs that was the hallmark of ancient Greek thought at its best. The spirit that animates Benedict's address is not the spirit of Pius IX; it is the spirit of Socrates. Benedict is inviting all of us to ask ourselves, Do we really know what we are talking about when we talk about faith, reason, God, and community? . . .

Let us begin by taking seriously Benedict's claim that in his address he is attempting to sketch, in a rough outline, "a critique of modern reason from within." He is not using his authority as the Roman pontiff to attack modern reason from the point of view of the Church. His approach is not dogmatic; it is dialectical. He stands before his learned audience not as the

pope, but simply as Joseph Ratzinger, an intelligent and thoughtful man, who makes no claims to any privileged cognitive authority. He has come, like Socrates, not to preach or sermonize, but to challenge with questions.

Ratzinger is troubled that most educated people today appear to think that they know what they are talking about, even when they are talking about very difficult things, like reason and faith. Reason, they think, is modern reason. But, as Ratzinger notes, modern reason is a far more limited and narrow concept than the Greek notion of reason. The Greeks felt that they could reason about anything and everything--about the immortality of the soul, metempsychosis, the nature of God, the role of reason in the universe, and so on. Modern reason, from the time of Kant, has repudiated this kind of wild speculative reason. For modern reason, there is no point in even asking such questions, because there is no way of answering them scientifically. Modern reason, after Kant, became identified with what modern science does. Modern science uses mathematics and the empirical method to discover truths about which we can all be certain: Such truths are called scientific truths. It is the business of modern reason to severely limit its activity to the discovery of such truths, and to refrain from pure speculation.

Ratzinger, it must be stressed, has no trouble with the truths revealed by modern science. He welcomes them. He has no argument with Darwin or Einstein or Heisenberg. What disturbs him is the assumption that scientific reason is the only form of reason, and that whatever is not scientifically provable lies outside the universe of reason. According to Ratzinger, the results of this "modern self-limitation of reason" are twofold. First, "the human sciences, such as history, psychology, sociology, and philosophy, attempt to conform themselves to this canon of scientificity." Second, "by its very nature [the scientific] method excludes the question of God, making it appear an unscientific or pre-scientific question." . . .

Modern reason argues that questions of ethics, of religion, and of God are outside its compass. Because there is no scientific method by which such questions can be answered, modern reason cannot concern itself with them, nor should it try to. From the point of view of modern reason, all religious faiths are equally irrational, all systems of ethics equally unverifiable, all concepts of God equally beyond rational criticism. But if this is the case, then what can modern reason say when it is confronted by a God who commands that his followers should use violence and even the threat of death in order to convert unbelievers?

If modern reason cannot concern itself with the question of God, then it cannot argue that a God who commands jihad is better or worse than a God who commands us not to use violence to impose our religious views on others. To the modern atheist, both Gods are equally figments of the imagination, in which case it would be ludicrous to discuss their relative merits. The proponent of modern reason, therefore, could not possibly think of participating in a dialogue on whether Christianity or Islam is the more reasonable religion, since, for him, the very notion of a "reasonable religion" is a contradiction in terms.

Ratzinger wishes to challenge this notion, not from the point of view of a committed Christian, but from the point of view of modern reason itself. . . .

In his moving and heroic speech, Joseph Ratzinger has chosen to play the part of Socrates, not giving us dogmatic answers, but stinging us with provocative questions. Shall we abandon the lofty and noble conception of reason for which Socrates gave his life? Shall we delude ourselves into thinking that the life of reason can survive without courage and character? Shall we be content with lives we refuse to examine, because such examination requires us to ask questions for which science can give no definite answer? The destiny of reason will be determined by how we in the modern West answer these questions.

Maritain

The Weekly Standard this week includes a nice review by Edward Short of Jean-Luc Barre's book on Jacques and Raissa Maritain, "Beggars for Heaven."  Unfortunately, the full review requires a subscription.  Here's a bit:

Not long ago I met a young woman who is studying philosophy at Stanford, and when I told her I was reading a new biography of Jacques Maritain, she said she had never heard of him.

That the greatest Catholic philosopher of the 20th century should now be unknown on the very campuses where, just a generation ago, he was universally read and admired, is profoundly disheartening. The fact that he has been jettisoned from the curriculum to make room for the nominalism of Michel Foucault speaks volumes about the intellectual defeatism that holds sway over our academic elites. This biography, by the French journalist-historian Jean-Luc Barré, should help revive interest in the work of a man who still rewards study. . . .

After the war, Maritain served as de Gaulle's ambassador to the Vatican. Ronald Knox, the English Catholic convert, once advised that "He who travels in the barque of St. Peter had better not look too closely into the engine room." Maritain saw altogether too much of the engine room and concluded that "Catholics are not Catholicism. The mistakes, the clumsiness, the inefficiencies, the lack of concern of Catholics do not involve Catholicism itself. It is not the responsibility of Catholicism to furnish an alibi for the shortcomings of Catholics."

When Maritain returned to Paris after the Second World War and found that he was practically forgotten, he received a letter from his fellow Thomist, Etienne Gilson, who took the liberty of advising his old friend on what Samuel Johnson once referred to as "the justice of posterity."

"Whether you realize it or not, you are great," Gilson told him, "and this is something for which you will never be forgiven." Gilson continued: "Go on with your work, which is irreplaceable, and don't worry about anything; the rest is of no account." Judging from what Maritain once said about his own mission, it is probable that Gilson's advice did not go unheeded. "I feel like a man walking on a slippery slope," he said, "carrying a very heavy weight in his arms. He must beware of the slightest misstep. What can one do? When it is a question of God's grace, one can only close one's eyes and let it work."

George's Reply on Pro-Life Democrats

Continuing our conversation on abortion and Democrats (see here, here, here, and here), Robert George writes:

I'm grateful to Rob Vischer for his posting in response to my remarks on the First Things blog regarding the obligations of pro-life voters.  Rob's questions are legitimate and important ones.  They cast light on the profound and even tragic dilemma in which we find ourselves as the result of the Democratic Party's support for abortion and embryo-destructive research.

I take it as axiomatic that where multiple injustices exist, our conduct as democratic citizens should be governed by careful and sober judgments regarding the gravity and scope of the various injustices.  This does not presuppose the quantifiability of injustices; but it does assume that we can assess in non-mathematical (but nevertheless rational) ways the gravity of injustices and their magnitude.  My own view, having tried to think through the question as carefully and soberly as possible, is that the injustices supported by the Democratic Party (though, of course, not by all Democrats) are so grave, and their magnitude is so great, that it is not reasonable to act for the sake of bringing the party into power--even assuming for the sake of argument that the Democrats have the superior (including more just; less unjust) positions on issues such as immigration, welfare, taxes, social security, and foreign policy.  Obviously, the validity of my judgment here depends on the soundness of my assessments of the gravity and scope of the injustices on both sides of the equation.  Pro-lifers will agree that the authorization and funding of cloning for the production of hundreds of thousands or millions of embryonic human beings to be destroyed in biomedical research would be a grave injustice and that the magnitude of this injustice would be extraordinary.  Perhaps some would argue that the magnitude of the putative injustices supported by the Republican Party in other areas offsets this.  That does not strike me as a reasonable position, though I would be happy to consider any argument someone has for why I'm wrong about that.

Notice that what I'm saying here does presuppose that the relevant judgments are contingent in certain ways.  Rob asks some hypothetical questions that highlight this fact.  There are things that President Bush and the Republicans could do that would shift my judgment.  If, for example, the President were to authorize retaliatory nuclear attacks designed to kill hundreds of thousands or millions of non-combatants in Arab nations, and his Party were to support him on this, that would make the Republicans complicit in an injustice of extraordinary gravity and scope.  The element of cruelty involved would add to direct killing additional dimensions of evil that are not present in the practice of embryo-destruction.  One can imagine policies along these lines involving grave injustice of such a magnitude that it would render it unreasonable for Catholic and other pro-life citizens to vote to keep the Republicans in power despite the Democratic Party's gravely unjust position on cloning and embryo-killing.  One of the things this shows is that a political party can advocate policies so unjust that citizens whose consciences are soundly informed cannot in reason support the party, even though the only viable alternative party is advocating policies that in other circumstances would compel the same judgment against it.

Rob raises the question whether this sort of reasoning renders issues other than abortion or (let us add) nuclear attacks on civilians "irrelevant" for Catholics and other pro-life voters.  I think the answer is no.  Let's say that one judges the Republican Party's policies on welfare reform, economic growth, affirmative action, and a range of of  issues to be vastly superior to those of the Democratic Party.  (Assume, for example, as many people believe, that Democratic policies on these issues actually harm the people they are meant to help, and the harm is substantial.)  One cannot, however, support the Republicans because of their willingness (in the purely hypothetical case I discussed) to kill millions of innocent people in retaliatory nuclear attacks.  Does that mean one can simply ignore the harms and injustices of Democratic policies?  Not at all.  One should be working to move the Democrats away from these policies and toward sounder and more just alternatives.  There are many areas in which one could act, including working and voting for candidates with what one judges to be sound (or at least sounder) views across the spectrum of issues in Democratic Party primaries.

Rob asks:  "Does the effect of single-issue voting actually deter the party on the wrong side of the issue, or by effectively shutting down the competition for votes on other issues, does it give license to the party on the correct side of the issue to disregard other pressing moral concerns without fear of reprisal on election day?"  The issue Rob raises here is very serious.  His question highlights the fact that the bad consequences that follow from a political party's enmeshing itself in a grave injustice of great magnitude can go beyond that particular injustice.  This is another tragic aspect of the contemporary Democratic Party's support for abortion and embryo-destructive research.  No party should be free of fear of reprisal from morally conscientious citizens on election day.  I myself would like to be able to cast a vote against the Republicans to punish them for what I regard as some rather serious delinquencies.  I want the Republicans to fear that voters like me will do that.  It is a deeply regrettable thing that the Democrats have made it impossible for people like me to do it without contributing to a situation of extraordinary injustice against millions of victims and potential victims of abortion and embryo-destructive research.

A final word:  The title of Rob's posting, for which I suspect he was not responsible, is misleading.  Far from believing that it is unreasonable to be a pro-life Democrat, I have encouraged Democrats for Life.  I wish them success in their efforts to reform their party and restore it to its mission of protecting the weak and vulnerable.  My personal decision to leave the Democrats and work within the Republican Party---a decision that many pro-life citizens have made over the past three decades---does not reflect a judgment on my part that it is wrong or unreasonable to stay within the Democratic Party and fight for pro-life principles.  People who do stay will, of course, labor under profoundly trying conditions.  Pro-life Democrats such as the late Robert P. Casey (for whom I had the privilege of working as an advisor on pro-life issues) have sometimes been subjected to ridicule and abuse by those in their Party for whom support for abortion is a non-negotiable principle.  Even small victories for pro-life Democrats are few and far between.  Moreover, I think that in most cases they cannot rightly support the candidates of their party in general elections---precisely because those candidates aggressively support abortion and embryo-destructive research.  It isn't easy being a pro-life Democrat; but I do not say it is unreasonable or wrong.

Points of Agreement?

Regarding the debate on abortion, I wonder if we could make a list of the points of agreement between the position of "pro-life" democrats and the republican party line. This might help us to map out exactly how much divergence there is. Here's a stab, I'd love to hear other suggestions:

1) Both agree that abortion is moral tragedy for all of the people directly involved and for society as a whole.

2) Many (perhaps not all, but the bulk) agree (either explicitly or tacitly) that the criminal law is too blunt to be the principal instrument for regulation of this complex social problem.

3) When considering various regulatory paths, many (again, perhaps not all, but the bulk) agree that practical solutions should weigh very heavily the host of public health problems that would arise if abortion is driven underground.

Morality & Economic Analysis

Hebrew University law profs Eyal Zamir and Barak Medina have posted a new paper, Incorporating Moral Constraints Into Economic Analysis.  From the abstract:

Economic analysis of law is a powerful analytical methodology. At the same time, as a purely consequentialist approach, which determines the desirability of acts and rules solely by assessing the goodness of their outcomes, standard cost-benefit analysis (CBA) is normatively objectionable. This Article proposes to overcome this deficiency by incorporating moral constraints into CBA.

Threshold deontology differs from welfare economics and other consequentialist moral theories in recognizing the priority of such things as autonomy, human dignity, basic liberties, truth telling, and keeping one's promises over the promotion of good outcomes. It holds that there are constraints to promoting the good, such as the constraints against harming other people and lying. Unlike absolutist deontology, however, threshold deontology holds that such constraints may be overridden if enough good (or, more commonly, enough bad) is at stake. For instance, while standard CBA is likely to justify the killing of one person to save the lives of two, or the coercive harvesting of one's kidney to save the live of another person, threshold deontology would find killing a person or harvesting her organs against her will impermissible unless much more good (e.g., the lives of many more people) is at stake. The analysis demonstrates that not only foundational deontology, but also the more sophisticated defenses of consequentialism, endorse such constraints.

Larry Solum offers some thoughts here.

Rob

Tuesday, September 26, 2006

Morality and Regulation

Regarding Ricks' most recent post responding to Eduardo, I think I draw a distinction that Rick does not draw between not outlawing abortion and funding and constitutionalizing it.  I agree with Rick that, notwithstanding the limits of legal moralism, we should be troubled by government action that has the effect of promoting abortion, such as funding.  But I'm not convinced failing to outlaw abortion is choosing injustice over justice.  I explore some of these issues in John Courtney Murray and the Abortion Debate, which appears in the Villanova Journal of Catholic Social Thought and is posted here as well.

Fighting the hypothetical?

With respect to Eduardo's recent question:

Let's assume for the sake of argument that the actual numbers of abortions under a system of legal prohibition would not drop significantly but would simply move underground . . . .  Let's also assume that these proposals by the Democrats would cause a substantial drop in the actual number of abortions.  Setting aside questions concerning the morality of contraception . . . , would that be a reason to favor the Democratic position on abortion over the Republican position? 

In my response, I don't think that I -- in Eduardo's words -- decided to fight the hypothetical.  Instead, I think I responded to Eduardo's other question:   "[I]f you favor the Republican position, is it because you think the assumptions are implausible or is it for some other reason?"  As I tried to explain, I do think the assumptions are implausible.

In any event, though, Eduardo invites us, again, to consider a "fairly narrow question about morality and law," namely, whether "abortion must be illegal, irrespective of the consequences of that prohibition."

Now, Eduardo and I (and Murray and St. Thomas!) agree that not all immoral conduct need be, or should be, illegal.  It is immoral, I assume, to relish in one's mind delicious revenge against one's enemies, but only a monstrous legal regime would make such relishing illegal.  It is wrong to engage in cruel and hateful speech, but we do not -- and should not -- outlaw such speech.  It is wrong to cheat on one's spouse, but no one should go to jail for it.  And so on.

Eduardo and I agree that abortion is immoral.  So, should it be illegal?  Or, to refine the question slightly, "how important is it that abortion be illegal, if its incidence can be reduced substantially by means other than regulation"?

For starters, I have to say that Roe and Casey should be opposed, and overruled -- that is, it should be, again, permissible to regulate abortion -- for reasons independent of abortion's immorality.  They are bad constitutional law, and the fact that these mistakes are more likely to be fixed (though, obviously, not certain to be fixed) by judges appointed by Republicans is a strong reason to prefer Republicans.  That said . . .

I tend to think that it is not enough (though it is a very good thing!) to reduce the number of abortions, while maintaining a legal regime that permits -- let alone funds and constitutionalizes -- it.  Conceding that there are real and important limits to legal moralism, it does seem to me that for a political community to fail to protect innocent unborn children from lethal violence -- that is, to single them out for non-protection -- on the ground that to protect them would violate adults' liberty to "define one’s own concept of existence, of the universe, and of the mystery of human life" is to choose, in a fundamental, defacing, and corrupting way, injustice over justice.  So, I'm hesitant to frame the task of choosing between the two parties' approaches solely in terms of the approaches' predicted effects on the number of abortions.  (This is not to say, I think, the consequences of prohibition are irrelevant to the "should we regulate?" question.)