1. As someone who has spent her entire academic career teaching at Catholic law schools (Notre Dame and U of St. Thomas Minneapolis), I don't spend much time worrying about whether effort spent on exploring the contours of a Catholic legal theory is a waste of time. I simply consider it to be part of my job. Isn't that what Ex Corde Ecclesiaedemands of us? Some excerpts:
31. Through teaching and research, a Catholic University offers an indispensable contribution to the Church. In fact, it prepares men and women who, inspired by Christian principles and helped to live their Christian vocation in a mature and responsible manner, will be able to assume positions of responsibility in the Church. Moreover, by offering the results of its scientific research, a Catholic University will be able to help the Church respond to the problems and needs of this age.
32. A Catholic University, as any University, is immersed in human society; as an extension of its service to the Church, and always within its proper competence, it is called on to become an ever more effective instrument of cultural progress for individuals as well as for society. Included among its research activities, therefore, will be a study of serious contemporary problems in areas such as the dignity of human life, the promotion of justice for all, the quality of personal and family life, the protection of nature, the search for peace and political stability, a more just sharing in the world's resources, and a new economic and political order that will better serve the human community at a national and international level. University research will seek to discover the roots and causes of the serious problems of our time, paying special attention to their ethical and religious dimensions.
If need be, a Catholic University must have the courage to speak uncomfortable truths which do not please public opinion, but which are necessary to safeguard the authentic good of society.
33. A specific priority is the need to examine and evaluate the predominant values and norms of modern society and culture in a Christian perspective, and the responsibility to try to communicate to society those ethical and religious principles which give full meaning to human life. In this way a University can contribute further to the development of a true Christian anthropology, founded on the person of Christ, which will bring the dynamism of the creation and redemption to bear on reality and on the correct solution to the problems of life.
I realize this might not be of much comfort to those who are not teaching at Catholic universities, but I think an argument could be made that Catholics teaching at non-Catholic universities share these responsibilities to some degree.
2. One aspect of the CLT project that hasn't been mentioned yet in this debate is the extent to which it is aimed at helping the Church figure out the appropriate responses to some of the difficult issues debated in the posts of MOJ (compare paragraph 31 of the Ex corde excerpt above with para. 32 & 33). In addition to trying to persuade the World to shape itself according to Catholic principles, aren't we, as lay people with, theoretically at least, some particular expertise in legal theory, supposed to be helping the Church think through new developments? Aren't we "where the Church does its thinking"? It seems to me that this aspect of the Project needs no defense against criticisms such as the one that started this discussion.
It does, however, raise some other questions for us. Such as: Is "the Church" listening to us? And, even more interesting, to me, (again quoting Paragraph 31 of Ex corde) exactly who are the "women who, inspired by Christian principles and helped to live their Christian vocation in a mature and responsible manner, will be able to assumepositions of responsibility in the Church" (emphasis added)?
Ross Douthat asserts that liberals tend to be peacetime utilitarians (e.g., stem cell research) and conservatives tend to be wartime utilitarians (e.g., torture), then makes an interesting observation as to why we seem doomed to utilitarianism:
This reality, I think, offers the umpteenth example of why the Victorian project (which persists to this day) of doing away with Christian dogma but trying to keep Christian morality intact is doomed to failure. Not because Christian morality can’t be approached rationally by nonbelievers of good will, but because without the lived experience of a religious tradition it will never be anything more than an abstraction, an arid intellectualism, something that gets followed when following it is easy to follow and abandoned as soon as the going gets tough.
Heather MacDonald's criticism of conservatism's religious rhetoric has triggered quite a response: Michael Novak here, Joe Knippenberg here, Andrew Sullivan here, and Ramesh Ponnuru here.
The book to consult on this issue is John Connery S. J.'s book "Abortion: The Development of the Roman Catholic Perspective" (Loyola University Press 1977). Father Connery explains that Antoninus relied on the distinction between the animated and unanimated fetus that was prevalent before the process of fetal development was understood. Antoninus condemned abortion of the animated fetus in all cases. For the unanimated fetus, Antoninus allowed abortion to save the life of the mother. According to Father Connery, this was completely dependent on the distinction between the animated and unanimated fetus and so I don't think it is fair to cite Antoninus as supporting a pro-choice position. Later commentators who defend "abortion" to save the life of the mother (removal of a cancerous uterus) do so not because they defend the direct, intentional killing of a human life but because they regard the death of the fetus in such circumstances as incidental.
It is true that there have been individual Catholics who defend a "pro-choice" position (I suppose Daniel MaGuire, who has used the example of St. Antoninus, is one example). I don't think this supports the view that the Magisterium has taken conflicting views on the moral permissibility of abortion. And, I don't think it fair to use St. Antoninus's views on abortion to support the view that the Church has taken different views on this question. From Father Connery's account, St. Antoninus sounds more like Pope John Paul in Evangelium Vitae than Daniel MaGuire.
Heather MacDonald laments conservatism's reliance on religious rhetoric (HT: Volokh):
The presumption of religious belief -- not to mention the contradictory thinking that so often accompanies it -- does damage to conservatism by resting its claims on revealed truth. But on such truth there can be no agreement without faith. And a lot of us do not have such faith -- nor do we need it to be conservative.
What does Catholic legal theory have to say about this?
Three quarters of Americans can correctly identify two of Snow White's seven dwarfs while only a quarter can name two Supreme Court Justices, according to a poll on pop culture released on Monday.
IMHO, former-MOJ blogger Kathleen Brady's work on religious liberty is superb. To download/print/read Kathleen's latest piece, click here. This is the abstract:
This article addresses the
protections afforded by the First Amendment when government regulation
interferes with the internal activities or affairs of religious groups.
In previous pieces, I have argued that the First Amendment should be
construed to provide religious groups a broad right of autonomy over
all aspects of internal group operations, those that are clearly
religious in nature as well as activities that seem essentially
secular. In my view, such autonomy is necessary to preserve the ability
of religious groups to generate, live out and communicate their own
visions for social life, including ideas that can push the norms and
values of the larger community forward. Democratic self-government, in
particular, depends for its strength on religious and other private
groups that are able to generate and supply novel and unorthodox ideas
that make improvements in the status quo possible.
In
this article, I address several criticisms that have or could be made
of my position, and I clarify and expand my argument in response to
these criticisms. I begin by engaging scholars who have viewed my
position as one form of a familiar defense of religious group freedom.
I am essentially arguing, these scholars say, that religious groups
merit special protection from government control because they are good
for us; religious groups provide us with important social benefits that
would be compromised by state interference. As these scholars observe,
this type of defense is subject to a predictable critique. The problem
with such an argument is that autonomy has costs as well as benefits,
and I have not demonstrated that the benefits associated with a broad
right of autonomy outweigh the costs. Indeed, many scholars believe
that the balance tips in the opposite direction. The type of broad
autonomy that I envision will unleash abuses that will outweigh the
benefits that I identify.
In the first part of my article, I
clarify and expand my argument as I distinguish it from this familiar
form. I have, indeed, pointed to important social improvements
generated by religious organizations, but my argument has not been that
freedom for these organizations is appropriate because these social
benefits outweigh the costs. Rather, freedom is important because we do
not now and, indeed, never will have a complete understanding of what
is socially beneficial and what is harmful (at least this side of the
eschaton). Our understanding of which ideas and forms of life are truly
progressive is always imperfect and in the process of development.
Autonomy for religious groups is essential because these groups are an
important source of alternative ideas that make development and
improvement possible.
Indeed, my argument goes even further.
When I argue that religious group autonomy is essential to preserve the
ability of groups to develop and communicate new ideas that push the
larger community forward, I have had in mind something more than a
vague idea of social progress or improvement. What I have had in mind
is greater understanding of truth, including social and political
truth. What is really at stake is this knowledge of truth, and what
could be more important?
In the second part of my article, I
address several additional objections that are likely to be made in
response to these clarifications. These objections relate to the
connection that I draw between religious group autonomy and truth. The
first of these objections challenges my assumption that freedom will
advance our understanding of truth. The second objection challenges the
appropriateness of using religious or other comprehensive ideas about
truth as a basis for law and political life. The third objection
challenges the very existence of the type of truth that I refer to.
While my readers may initially react skeptically to the link that I
draw between religious group freedom and truth, I hope to demonstrate
that this link is not only plausible but also compelling.
I'd like to offer a couple of brief comments in response to Dave Harris's observation that the Catholic legal theory project seems "confusing and unproductive at best." I have to acknowledge that, to a certain extent, I agree with Mr. Harris. As I've expressed before, sometimes I fear that our debates mirror the conservative-liberal policy arguments taking place everywhere else, only we dress up our reasons with labels from Catholic social thought.
In my less jaded moments, though, I think we're engaged in important work. Gerald Russello articulated some of the reasons why, and I'll just provide a brief supplement. First, though most liberal theorists participating in our public discourse won't find references to "human dignity" or the "common good" to be especially new or insightful, Catholic legal theory expands the discourse by analyzing our temporal reality through the lens offered by the conviction that our temporal reality is not all that there is. We do not start from the premise that we exist, we start from the premise that we are created. That's a key distinction, and though its implications often will correlate with existing positions on the political spectrum, it should give rise to a normative framework that is not easily replicated by any single strand of thought within our public discourse.
Second, I''m becoming more convinced that CLT's primary value lies not in its revelatory power for the wider world, but in its articulation of the link between faith in Christ and our stance toward the surrounding legal and political cultures. St. Peter asked, "What kind of people ought you to be?" (2 Peter 3:11) That's the basic question we're asking ourselves as lawyers, teachers, and citizens. If my conclusions are entirely unoriginal, so be it. What matters is not that the lived expression of my faith is meaningfully different from the political prescriptions of libertarians, value pluralists, or communitarians; what matters is the impetus for my expression: devotion to Christ.
I have been away for some weeks and have had little time to
write, but I can not resist responding to Father Araujo’s August 2d post about
Mel Gibson, Elton John, and the Boston Globe. Father Araujo expresses concern that the Globe
(http://www.boston.com/news/globe/editorial_opinion/editorials/articles/2006/08/02/gibsons_ugly_passion/)
was not as conciliatory
as the ADL about Gibson’s apology for his drunken Anti-Semetic remarks.
He then
becomes curious whether the Globe has been similarly concerned about
Anti-Catholic
remarks by celebrities. He faults the Globe for not speaking out
against the
alleged Anti-Catholicism of Elton John. He finally wonders “whether the
Globe’s
editorial was really about Mel Gibson or was it about and directed to something
else.”
In reaction, first I resist the Gibson/John comparison
for three reasons that are relevant to journalistic decisions. (a) Anti-Semitism has been associated with the enormous evil
of the holocaust. Anti-Catholicism is to be deplored, but it has not been
associated in our recent history with the same kinds of consequences as racism
and Anti-Semitism; (b) Unlike John, Gibson had denied Anti-Semitism. He had
produced a movie that many, rightly or wrongly, thought reflected Anti-Semitism.
If John had denied Anti-Catholicism and then made Anti-Catholic remarks there
would be a closer parallel; (c) Father Araujo says that Elton John has made
remarks against the Church and Catholics. I am aware that John has sharply
criticized the Vatican’s
position on birth control and homosexuality. Some of these statements strike me
as overly shrill, harsh, and exaggerated . But I do not regard those statements as anti-Catholic (though
they are surely anti-Vatican) in the same sense as racist and anti-semetic
remarks. I am not aware of John making statements that are negative about
Catholics in general of the order made by racists about blacks in general or
Gibson seizing on a cop because he was Jewish and believing that stood for
something negative. A person at Cornell once said to me that he thought a
person was rigid because of his Catholic background. That struck me as
anti-Catholic.
I think in view of the Catholic Church’s history of Anti-Semitism
(and its desire to open dialogue) that Catholics have a particular
responsibility not to trivialize Anti-Semitism when it occurs. I am sure that
Father Araujo shares that view, but if I am right about the Gibson/John
comparison I think his post inadvertently trivialized the horror of Gibson’s
remarks.
My second reaction to Father Araujo’s post is that I am
puzzled by his conclusion where he wonders whether the Globe’s editorial was
really about Mel Gibson. What is he suggesting?
Finally, was the Globe insufficiently conciliatory? Here I
share Father Araujo’s conclusion. The Globe made some points worth making. It
suggested that prejudice is eased by absolutist views (e.g., my way is the only
way to respond to God) though it did not seem to recognize the complex dynamics
of prejudice beyond that. It recognized that Gibson was not representative of
Catholics, citing Vatican II. It
mentioned that Gibson had financial motives for a public apology though it did not
adequately consider the possibility that he might be truly sorry for what he
did just because it was wrong.
My belief is that Gibson probably continues to harbor
prejudicial views, and that he would like to get rid of them. I do not think he
is alone. I believe that most of us are quite lucky that we do not have an extreme form of Tourettes
syndrome in which we speak aloud the thoughts that come into our heads. The
social science evidence strongly suggests that the overwhelming majority of
white Americans are embedded with racist stereotypes. Surely millions are
flooded with stereotypes, try to drive them out, only to have them come back.
For Gibson, alcohol was an extreme case of Tourettes syndrome (probably aggravating the latent views). The Globe did not wish him well, but it
should have.
USA Today reports, in a sidebar to a column by Tom Ehrich on religious views on abortion, that:
The popes have taught that abortion is always forbidden, and the church hierarchy has held to a doctrine that strongly opposes it. Even so, grounds for permitting abortion exist in the Catholic tradition, and many Catholic theological authorities permit abortion in a variety of situations. There is even a pro-choice Catholic saint, the 15th century archbishop of Florence, St. Antoninus. He approved of early abortions when needed to save the life of the mother, a huge category in his day. There is thus no one Catholic view.
