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.

Wednesday, June 21, 2006

Response to Patrick / The Sounds of Silence

By Amy Uelmen

Re Patrick’s entry on 6/16, “Cardinal McCarrick’s Silence”—and whether it means that efforts come “to nothing”… Just to offer another potential read.  It could be that they’d like to leave room for more personal and more pastoral judgment and action for how to engage Catholics in public life, depending on the circumstances.  I just spend a semester reminding my Catholic Social Thought & the Law students that official institutional documents are not all there is when it comes to thinking about what constitutes the life of the Church – and it seems that in some areas, it might also be that vehicles other than institutional statements might leave more room for listening, understanding, and creating lines of communication and trust.  (Which was, I believe, the upshot of their previous statements).  Amy

Response to Rob / Homeward Bound

By Amy Uelmen

I have a host of questions about Hirshman’s definitions of “flourishing” which seems to be grounded in notions of success according to “elite workplaces” standards.  I think one of the reasons that many women “drop out” is that “success” in many those environment often implies letting work have a totalizing claim over one’s entire life—so that there is little time to nourish family or other relationship, or simply pay more than minimal attention to other aspects of one’s life.  Specifically discussing large law firms, Hirshman muses, “It is possible that the workplace is discriminatory and hostile to family life…” but then continues: “women must take responsibility for the consequences of their decisions.”  Does this brand of feminism leave no room at all for a critique of the “elite workplace” structures as less than suited to full human flourishing?  It seems to be that this is also one example of how the concept of “vocation” has been high-jacked—the ground assumption is that work constitutes the entirety of one’s life and their is no meaning (or at least significant meaning) outside of one's work.  For me, all of this runs dangerously close to idolatry—not exactly the path the human flourishing, at least in CST lines.  As I’ve done some initial work on this in “The Evils of Elasticity” reflection on the “part-time” paradox, in large firm practice, which is posted under my name at the side, and now on SSRN.  Amy

More Data

By Eduardo Penalver

Republicans are busy demonstrating more of their concern for the weakest among us.  The minimum wage is now at its lowest point in about 50 years.  Despite that, their top legislative priority is the further reduction (if not total elimination) of the estate tax.

Meanwhile, more stories of torture, some of them implicating the president himself.  This excerpt comes from a Washington Post review of Ron Suskind's new book, The One Percent Doctrine (hat tip to Kevin Drum):

Abu Zubaydah, his captors discovered, turned out to be mentally ill and nothing like the pivotal figure they supposed him to be....Abu Zubaydah also appeared to know nothing about terrorist operations; rather, he was al-Qaeda's go-to guy for minor logistics....And yet somehow, in a speech delivered two weeks later, President Bush portrayed Abu Zubaydah as "one of the top operatives plotting and planning death and destruction on the United States."

*****

Which brings us back to the unbalanced Abu Zubaydah. "I said he was important," Bush reportedly told Tenet at one of their daily meetings. "You're not going to let me lose face on this, are you?" "No sir, Mr. President," Tenet replied. Bush "was fixated on how to get Zubaydah to tell us the truth," Suskind writes, and he asked one briefer, "Do some of these harsh methods really work?" Interrogators did their best to find out, Suskind reports. They strapped Abu Zubaydah to a water-board, which reproduces the agony of drowning. They threatened him with certain death. They withheld medication. They bombarded him with deafening noise and harsh lights, depriving him of sleep. Under that duress, he began to speak of plots of every variety — against shopping malls, banks, supermarkets, water systems, nuclear plants, apartment buildings, the Brooklyn Bridge, the Statue of Liberty. With each new tale, "thousands of uniformed men and women raced in a panic to each...target." And so, Suskind writes, "the United States would torture a mentally disturbed man and then leap, screaming, at every word he uttered."

It seems to me that when we assess the moral status of this administration, we are increasingly left with the stark fact that the only plausible case for its consistency with Catholic teaching relies almost exclusively on its positions on stem cells, abortion, and homosexuality.  The question then becomes how much of this can be justified in the name of those three issues.

The New Biopolitics

By Rob Vischer

Democracy: A Journal of Ideas has launched as a "new progressive quarterly journal," and it may be of interest to MoJ readers.  Its first issue features some interesting pieces, including Duke law prof Jedediah Purdy's article, "The New Biopolitics."  An excerpt:

[A]long with electronic commerce, transnational fanaticism, and increasingly fluid borders, there is a missing piece in the current picture of globalization, one that puts the familiar paradoxes in a new light: biopolitics, the politics of human life and reproduction. Around the world, people are taking control of childbearing in new ways, which could produce serious consequences for global politics. In Europe, Russia, Japan, and South Korea, women are having too few children to sustain the current population. A shrinking workforce means too few taxpayers to support the next generation of retirees. The only obvious solution is greatly expanded immigration–which, recall, is already the source of riots, xenophobia, and deep political anxiety. All this threatens a perfect political storm of bankrupt welfare states, struggles over immigration, and crises of national identity. Meanwhile, in India, China, Taiwan, Pakistan, and Afghanistan, a very different problem is growing. Abortion of female fetuses, along with other causes, has produced a population with roughly 100 million more men than women–men who are a prime constituency of extremist political movements in that volatile part of the world.

The demographic crises of globalization express a deep, troubling question. The crises emerge from hundreds of millions of free choices that earlier generations could not make: whether and when to bear children, and which children to bear. In other words, the two demographic crises express a dramatic new form of freedom, part of the unprecedented control people have gained over their lives in the several centuries of the liberal, modern experiment. The question is whether we have gained more freedom than we can handle.

Rob

Denying "Choice"

By Rob Vischer

Is a woman's choice to stay home with the kids a legitimate choice?  I missed this article, "Homeward Bound," when it was published last fall in The American Prospect, but it has created quite a firestorm.  Linda Hirshman argues that the "opt out revolution," in which well-educated moms are leaving the career track to care for their children, is really a "downward spiral":

The family -- with its repetitious, socially invisible, physical tasks -- is a necessary part of life, but it allows fewer opportunities for full human flourishing than public spheres like the market or the government. This less-flourishing sphere is not the natural or moral responsibility only of women. Therefore, assigning it to women is unjust. Women assigning it to themselves is equally unjust. To paraphrase, as Mark Twain said, “A man who chooses not to read is just as ignorant as a man who cannot read.”

I agree -- and my dishpan hands attest to the fact -- that household work is not the sole domain of women.  But to acknowledge a need for greater labor equity in the home and more support for child care in society is a flimsy basis for insisting that a woman's decision to stay home with young children is somehow delusional or objectively unhealthy.  Two questions for Hirshman: Is paternalism deployed within the rhetoric of feminism still properly called paternalism, or do we need a new label?  And is she really comfortable with the ramifications of suggesting that society must pierce the veil of private "choice" in order to ensure that the human person leads an objectively healthy, flourishing life?

Sunday's Washington Post published Hirshman's observations of the public reaction to her article, and Monday's Post summarized the discussions in the blogosphere.

Rob

Tuesday, June 20, 2006

Homelessness and Personhood

By Rob Vischer

Justin Stec has posted an intriguing new paper, Why the Homeless are Denied Personhood Under the Law: Toward Contextualizing the Reasonableness Standard in Search and Seizure Jurisprudence.  (HT: Solum)  Here's the opening paragraph:

The homeless have questionable and variable access to legitimate private space. They live over time with little consistent unperturbed space to develop and manifest their inner identity in outward actions. They have no free space to experiment, make mistakes, or just “be” themselves, to learn or grow in a comfortable environment. Unlike the homed, the homeless lack liberty in this respect. Physically, the homeless do not have the option to exclude others because they lack the financial capital to barricade their private sphere in a legally recognized manner. As such, their ability to materially and psychologically function as “normal” is reduced and, in turn, their ability to portray “reasonableness” to a judge or third party is lessened. The law categorizes space in a way that augments this phenomenon, rather than disrupts it; law strips the homeless of precious autonomy. In particular, the context of homelessness is not enunciated nor enforced in search and seizure jurisprudence, yielding contextual and abstracted decisions that recapitulate current power schematics, regardless of the intention of lawmakers.

Rob

Reason #143 Why I Don't Give Money to Harvard

By Rob Vischer

Generally alumni newsletters are filled with rosy portraits of a university on the move, desperate for alumni dollars to empower the forward progress.  I received one such newsletter yesterday from Harvard, but the promised progress is headed toward "Brave New World" environs.  The university reports that "after more than two years of intensive ethical and scientific review," Harvard researchers "have been cleared to begin experiments using Somatic Cell Nuclear Transfer (SCNT) to create disease-specific stem cell lines in an effort to develop treatments for a wide range of now-incurable conditions afflicting tens of millions of people."  The "intensive ethical review" resulted in a decision that ova donors will not be paid.  As for the ethical questions surrounding that whole destruction-of-human-life problem, the lead researcher explains that:

"[A]ll human cells, even individual sperm and eggs, are 'living.' The relevant question is 'when does personhood begin?' That's a valid theological or philosophical question, but from the scientific perspective, this work holds enormous potential to save lives, cure diseases, and improve the health of millions of people. The reality of the suffering of those individuals far outweighs the potential of blastocysts that would never be implanted and allowed to come to term even if we did not do this research."

So personhood is a valid theological or philosophical question, but not of concern to science?  Or it is a concern, but can be trumped if the greater good is served?

Rob

Monday, June 19, 2006

Abortion and Disability Rights

By Thomas Berg

       I've been enjoying other MOJ-ers' posts, but so overwhelmed with a new casebook edition and various other colliding deadlines as to be unable to blog.  It's great to have such a wide range of people always carrying the ball forward.  Apropos of Rob's reference to the book on medical eugenics ... I recently attended the annual conference of Democrats for Life, which this year focused on their 95-10 Initiative to reduce abortions through policy measures designed to counter economic and cultural pressures to abort.  There were good, substantive presentations on adoption, crisis pregnancy centers, child-care and other resources on college campuses, and so forth.  Perhaps the most interesting presentation was from an executive of a major disability-rights organization, whose group is "abortion neutral" (and who himself took no general position on abortion), but who suggested that pro-life activists, as a strategic matter, should give more attention to the disability-rights aspect of their cause: i.e. to the pervasive use of abortion, after prenatal testing, on unborn children with serious genetic disabilities.  (See this story among others.)
       Would emphasizing this be to emphasize the cases in which most people, rightly or wrongly, view as among the most morally sympathetic for abortion?  Or, by contrast, is the disability-rights critique a strong logical lever that should make pro-choice liberals more uncomfortable with abortion in general?  Such an argument might go something like this:  Any critique of abortion of disabled unborn children cannot logically be confined to that case.  Scholars and activists who are generally pro-choice but criticize the current prenatal-testing and abortion practices assert that "[p]re-natal testing, and the more recent and less common embryo screening and selection, are justified by mistaken assumptions about the quality of life of people with disabilities, and are demeaning to existing people with disabilities"; parents who "select against a fetus because of predicted disability" far too often erroneously conclude that this child could not be one "'who will enrich us, gladden others, contribute to the world, and make us proud.'"  Adrienne Asch, Disability Equality and Prenatal Testing: Contradictory or Compatible?, 30 Fla. St. U. L. Rev. 315, 318, 316 (2003) (restating the critique).  But the same might be said in many, many other cases in which unborns are aborted because mothers believe that the children's lives and the raising of the children will simply be too difficult or stunted because of circumstances (poverty, many born children already, single parenthood, etc.). If abortion is a troubling judgment of hopelessness about the lives of born disabled people -- troubling even if the parent(s) reaches it after much conscientious consideration -- then it must also be a troubling judgment of hopelessness about the lives of born people in many other circumstances as well.  I wonder what others think about this.
                                      Tom B.       

From the Woodstock Report

By Patrick McKinley Brennan

I've read the Woodstock Report, from the Woodstock Center, D.C., for years, and often profited thereby, and now they offer this re and from the much-discussed Father Reese, S.J., recently appointed Fellow at Woodstock:

The speaker paralleled the pre-Vatican II teaching on religious freedom with Islamic fundamentalism today. “In a sense, Islam is a lot like pre-Vatican II Catholicism – ‘we’re going to have a religious state and it’s going to be Islam.’ And much of what’s going on in the Middle East between Sunnis and Shiites reminds me of the religious wars between Protestants and Catholics in Europe. There are just a few centuries of difference in what we’re talking about.”

As Father Reese explained, the contemporary Catholic vision of religion and politics is projected through Catholic social thought, which extends from Scripture and principles of natural law (for example, human dignity and the common good). He characterized the American bishops as struggling with these questions: “I think the bishops want to be a nonpartisan prophetic voice, where they talk about principles, about values, about concern for the poor and the immigrants, about life issues – without identifying themselves with a particular party.”

Some would argue the bishops muted this nonpartisan message in the 2004, when a furious handful of them stole the election-year stage by denying communion to Catholic politicians (especially liberal Democrats) who take a prochoice stand on abortion.

Although many at the time saw the U.S. hierarchy as stumping for the GOP, Father Reese pointed out that prelates are now making news for condemning the immigration bill recently passed by the Republican-controlled House of Representatives, with some even calling for civil disobedience if necessary. The Jesuit drew laughs from the audience when he asked, “Are these Republican bishops? What happened to the Republican bishops?”

What Father Reese forgot to say is that no teaching of the Church blesses the implementation of "law" that violates the natural law.  "Talk" about "principles, about values," as Father Reese knows, could be the achievement of a garden-variety enemy.  The pluralism sought, and rightly, by the generation Reese celebrates doesn't elide or drop the content of the natural law from the necessary conditions of legitimate rule.  Bernard Lonergan, S.J., whom Reese quotes very aptly from time to time, never doubts, so far as I am aware, that the state cannot make into "law" what is inconsistent with human nature/finality. 

Reflecting on Cardinal McCarrick's recent comment on "partisan politics," one can regret the Woodstock Report's highlighting of "the Jesuit's" pandering "Are these Republican bishops?" humor.  We all know that the bishops have taken a courageous stand on the U.S. immigration questions.   

And to return to Longeran, one of my teachers, steeped in Lonergan, used to say, "Don't say, 'You could argue.' Can YOU argue?  If not, be clear about what you're trying to contribute to the argument."  Can it be "argued," and, if so, to what effect, that the "prochoice" bishops "stole the show" at the last election,"mut[ing]" the bishops' "nonpartisan message?"  What was that message?  Was it consistent with the natural law?     

New Video on Romero

By Eduardo Penalver

From the University of Scranton Press:

Stepstone Productions, Inc., Produced by Archbishop Romero, Martyr and Prophet. Distributed for the University of Scranton Press., 28 minutes. 2005

VHS Video $15.00sp 1-58966-121-4 Spring 2006

On March 24, 1980, Archbishop Oscar Romero was brutally murdered by a death squad gunman while saying Mass. During his three years as the leader of El Salvador’s Catholic community, Romero had been a source of strength for the poor and oppressed. Like one of the prophets from the Old Testament, he confronted those in power, denounced their immoral and unjust activities, and wrote and preached passionately about justice and peace—which eventually led to his nomination for the Nobel Peace prize in 1979. The video Archbishop Romero, Martyr and Prophet brings Romero’s political vision and legacy to life. It will provide inspirational viewing for anyone interested in the struggle for human dignity and justice around the world.

Subjects:

  • BIOGRAPHY AND LETTERS
  • HISTORY: Latin American History
  • RELIGION: Christianity
  • LATIN AMERICAN STUDIES
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