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, February 23, 2006

A brief comment from Brian Leiter

In response to my previous post, Brian writes:

"Professor Eberle's post is the review Mr. Wieseltier should have written, but did not.   If it were the review he had written, I, at least, would not have seen any reason to comment."
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The 15

Over on my personal blog, I've got some thoughts on the new Cardinals elevated by Pope Benedict yesterday. In particular, I muse about the political implications associated with the elevation of Sabino and Zen.

Chris Eberle Replies to Brian Leiter

This post is one of a series of posts (here and here).  I think that with this post, the conversation has played itself out for now.  Thanks very much both to Chris and to Brian.

Chris's reply to Brian:

Professor Leiter is undoubtedly correct that Wieseltier is misinformed about various claims that are, in fact, relevant to the claims Wieseltier wants to make. I’m not nearly so bothered by that as Professor Leiter seems to be. I genuinely care not a whit that Wieseltier doesn’t correctly characterize how Dennett’ project articulates with Hume’s. That kind of misunderstanding is nearly inevitable when the inexpert comment on topics about which they lack expertise. What I do care about is whether Wieseltier has something relevant to say about the substantive points at the heart of Dennett’s project. And he does. (I have to admit that I haven’t read Dennett’s book and so I’m at a severe disadvantage. So perhaps I should say that Wieseltier has something worthwhile to say about the topic Dennett seems to address.) What’s that?

Professor Leiter grants that Dennett tells a speculative story about the origins of religious belief. I take ‘speculative story’ here to mean something like ‘a story that might be accurate but that is decidedly lacking in evidential support.’ The question is: what philosophical or polemical interest does such a story have?

I take it that Dennett regards his project as having some kind of polemical or philosophical point – he’s going to tell a story about the origins of religious belief and wonders whether religious people “will have the intellectual honesty and courage to read this book through." But if Wieseltier and Professor Leiter are correct that Dennett’s story is possibly true but decidedly lacking in evidential support, I’m perplexed as to why reading his book should require courage on the part of religious believers like myself.

So here’s my perplexity. I, the religious believer, firmly adhere to my pieties, think that my theological commitments are true, and even that my central religious commitments have warrant. Dennett doesn’t think my theological commitments are true, and he denies that they have warrant either. He doesn’t try to show that my theological commitments are false; if Wieseltier is correct, he’s not even interested in that question. Rather, he tells a story about where my beliefs come from, a story which, if true, entails that my religious commitments lack warrant. What am I to make of that story? Does it provide me with any reason at all to believe that my religious commitments lack warrant? Should I grit my teeth before I purchase Dennett’s book, fearful that my dearly held pieties are soon to be ground down by the force of Dennett’s logic? Doubtful. How could his speculations provide me with good reason to withhold belief from my pious commitments given the paucity of evidence Dennett’s able to adduce for his story? My beliefs lack warrant if they’re actually unreliably formed, and Dennett’s story provides reason to believe that they’re actually unreliably formed only if his story is not only possibly but actually true, and in order for me reasonably to believe his story I really need evidence to believe that his story is in fact accurate. And that's just what he hasn't given me.

So far as I can tell, Wieseltier, and Professor Leiter and I can agree – here’s my peace proposal. Reliability is an important epistemic property – and I should want my religious commitments to have it. Dennett tells a yarn such that if it’s true, I should believe that my religious commitments are unreliably formed and so lack warrant. But his yarn lacks adequate evidence, and so provides no good reason for me to reject my religious commitments. That’s Wieseltier’s view, and he’s correct: “So all of Dennett's splashy allegiance to evidence and experiment and "generating further testable hypotheses" notwithstanding, what he has written is just an extravagant speculation based upon his hope for what is the case, a pious account of his own atheistic longing.” Moreover, that’s the central concern Wieseltier’s review raises – better, it’s the issue he raises that I care most about. Are my religious beliefs true? Are they reliably formed? I very much want to know. And unless Dennett can offer us more than speculative storytelling, he’s not really much help for me, here, now.

--Chris Eberle
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Religious Freedom in a Time of Domestic Surveillance

Sightings  2/23/06

Religious Freedom in a Time of Domestic Surveillance

-- Jonathan Rothchild

The legal limits of mechanisms designed to confront the new paradigm of the war on terror have been the subject of many recent debates.  These debates initially focused on prisoner treatment, interrogation practices, and extraordinary rendition.  They have now shifted to domestic surveillance, including discussion of the civil liberties of religious groups.  The common thread, however, is the concern for power, not values.  Citing presidential prerogative and military necessity, President Bush has argued that the executive possesses privileges vouchsafed by constitutional and statutory authorities, among them the congressionally passed Authorization for the Use of Military Force, or AUMF (September 18, 2001).

Among various provisions, the AUMF "includes the authority to order warrantless foreign intelligence surveillance within the United States" (December 22, 2005, memo from William Moschella, Assistant Attorney General).  The administration argues that the statutory provisions of the Foreign Intelligence Surveillance Act (FISA) permit exemptions; that is, they allow for presidential discretion without judicial approval to implement strategies as necessitated by security exigencies.

Conducted principally by the National Security Agency (with roots stretching to the pre-NSA days of the Truman presidency and flourishing under the Hoover-directed FBI), such surveillance is designed to gather sensitive security information for utilitarian government ends: "Intercepting communications into and out of the United States of persons linked to al Qaeda in order to detect and prevent a catastrophic attack is clearly reasonable" (original emphasis).  The legal debates continue to center around constitutional strictures and legal precedence: Did President Bush knowingly circumvent or break the law?

Yet, deeper issues about political duties and religious liberties appear neglected in the current conversations.  Two recent disclosures describing intrusion on civil liberties of religious groups raise further questions regarding the justification of the domestic spying program.  In one example, reports indicate that the government infiltrated the Truth Project, a group that met in a Quaker House to discuss nonviolent ways of countering military recruiting in high schools.  The formal religious character of the project is not the primary concern; what is at issue is the Truth Project's contrarian perspective, which challenges the status quo through nonviolent means -- thus resonating with the prophetic religious critiques of Martin Luther King, Jr., and Paul Tillich, two thinkers monitored by government agencies.  Moreover, reports reveal that the federal government identified the Los Angeles Catholic Worker as a group subject to surveillance -- an unsurprising fact, given that the FBI meticulously tracked Catholic Worker co-founder Dorothy Day.

The exercise of religious freedom to interrogate, gainsay, and counter government policies has been compromised by political mechanisms such as spying and the Patriot Act, which afford federal and local agencies various measures to investigate citizens.  These means include planting agents in mosques, churches, and political action groups, and create the conditions for substantial abuses.  Do such means contradict the Fourth Amendment, which ensures "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures"?

In a January 23 speech, President Bush articulated his understanding of what constitutes "reasonable" procedures: "It means that Congress gave me the authority to use necessary force to protect the American people, but it didn't prescribe the tactics.  It said, 'Mr. President, you've got the power to protect us, but we're not going to tell you how.'"  But the president's construing of reasonableness in terms of unfettered means -- "tactics" that traditionally were interpreted as being constitutionally "unreasonable" -- to achieve a certain end -- protection -- attenuates the coherence of that reasonableness.

The claims about national security, as advanced by the Bush administration, are no doubt serious, but they take on an ad hominem character.  The mantra of security seems impenetrable, even implacable; it expresses a certainty (all future attacks must be prevented) in the face of uncertainty (how and when these attacks will occur).  In essence, the administration presupposes that individual liberties, religious and otherwise, can and must be suspended to protect the common good of society.

This presupposition, however, fails to appreciate that it is in and through the exercise of these liberties and their relational dimensions that individuals construct and affirm the common good.  The common good depends on the delicate balance of rights and duties, freedom and authority, and means and ends that cannot impugn basic expressions and experiences of the human journey -- such as the exercise of religious freedom and critique.
Jonathan Rothchild is Assistant Professor of Theological Studies at Loyola Marymount University.  He is co-editor of Doing Justice to Mercy: Religion, Law, and Criminal Justice (forthcoming, University of Virginia Press).
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Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.
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Catholics in the body politic-- and some would have them out?

I respect and honor the right of Kate Michelman, Nancy Keenan, and Frances Kissling to voice their opinions about the body politic (and I am sure they respect others to argue opposing views—don’t they?). These three individuals do not, however, speak for Catholic women. They speak for those with whom they agree—male and female, believer and agnostic. They speak for those who think that taking human life is a Constitutional right. I think that Mr. Collins could expand his horizons a bit and speak with Helen Alvare, Mary Ann Glendon, and Teresa Collett. (I will only mention three names here as he did.) If he were to speak with other women who did not and would not attend the NARAL banquet, he might have a different perspective on what Catholic women think. Moving along to the second point noted by John Miller about Mr. Collins: does he, Mr. Collins, dismiss the possibility that Mmes. Michelman, Keenan, and Kissling might have a detailed blueprint for a political strategy to affect the American democratic process at the national, state, and local levels? True, they probably have not taken over the Republican Party. Is it possible, though, that they may have taken over the Democratic Party? RJA sj

Wednesday, February 22, 2006

Brian Leiter responds to Chris Eberle

[This is a followup to my post yesterday.  Here is Brian Leiter's response to Chris Eberle's comments:]

Michael Perry called Professor Eberle’s comments to my attention and kindly invited me to respond.

I shall skip Professor Eberle’s first paragraph, which simply plays rhetorical tricks with my comments and is irrelevant to the issues of substance.


Professor Eberle would like to minimize the significance of Wieseltier’s mistakes by describing them as just a matter of not “hav[ing] all of his philosophical ps and qs together,” and as “minor interpretive points,” and as showing that he “isn’t a professional philosopher.” I take it Professor Eberle is conceding, delicately, that Wiesletier is, indeed, ignorant about the subject on which he is writing: to wit, why one might think scientific explanations of psychological and social phenomena might be worth pursuing; how Dennett’s project relates to Hume’s; what Hume’s theism does or doesn’t amount to; and the relevance of the etiology of belief to the epistemic status of that belief. (This last point Professor Eberle describes, correctly, as “a pretty standard point in contemporary epistemology,” which, of course, confirms my point about Wieseltier’s embarrassing ignorance of the subject on which he opines.) Professor Eberle can not really be serious that to be mistaken on all these points is somehow trivial; they are central to the review and Wieseltier’s criticism of Dennett.


Professor Eberle says correctly that Dennett’s speculative story about the origin of religious belief “can be used to discredit claims to religious knowledge only if the story Dennett tells about the history of religious belief…is both true and provides reason to believe that religious belief is formed unreliably.” As I explicitly noted in my comments on the review, Wieseltier’s one fair point is about the speculative status of the story Dennett is telling in the book. Professor Eberle then says, wrongly, that, “If Dennett’s narrative isn’t actually true, then Leiter’s repeated reference to the epistemic relevance of the etiology of belief is itself irrelevant.” This non-sequitur surprises me, for I did not think the basic point here was a hard one. The etiology of belief can be relevant to its epistemic warrant (which Professor Eberle concedes, and which Wieseltier denies, because he is ignorant); Dennett offers a speculative story about the etiology of religious belief, involving an extrapolation from paradigmatic explanations in evolutionary biology; if the speculative story is true (or well-confirmed, as I put it), then it raises questions about the epistemic warrant for religious beliefs. That the argument has the form of a conditional, whose antecedent is undecided, does not make the point about etiology irrelevant—and especially not when Wieseltier denies the purely epistemic point!


The Plantinga argument for the self-refuting nature of evolutionary naturalism is the subject of a large secondary literature, but it is not relevant to the “game” I was playing in my comments on Wieseltier. If Dennett’s (or anyone’s) argument were that any cognitive capacities that have an evolutionary explanation are epistemically suspect, then the Plantinga argument would be clearly relevant. But that is not Dennett’s (or anyone’s) argument.


I take it Dennett’s (and everyone else’s) argument has the same structure as Hume’s original one: where beliefs lack a rational warrant, we need some explanation for why the beliefs are held nonetheless. Dennett favors an evolutionary one; Hume favored a different one; Freud had another; Marx another; Nietzsche another; and so on. I take it, then, that what Professor Eberle wants to claim is this: since the naturalistic explanations in the offing do not involve reliable methods for belief formation, if they are the correct explanations, then they undermine the epistemic warrant (if not the truth) of the beliefs in question. But then, so the argument goes, doesn’t the same consideration count against the reliability of our cognitive faculties that are the product of these same unreliable mechanisms?


Notice, to start, that an unreliable mechanism [e.g., natural selection] for forming beliefs is not, a fortiori, a mechanism that necessarily produces unreliable belief-forming cognitive mechanisms. That requires a separate argument. Plantinga has one, about which more in a moment. Wieseltier runs these points together in the review; Eberle appears to do the same, but perhaps this was simply due to being terse.


Plantinga’s is an interesting, if not successful, argument, but it is still, I think, irrelevant to the review of Dennett. (Professof Eberle is probably right that Wieseltier is recycling the Plantinga argument, which gets a lot of play in pious circles; alas, the responses to Plantinga don’t seem to get the same kind of play.) The structure of Dennet’s argument, again, runs this way: (1) religious beliefs (e.g., in God or gods, in an immaterial soul, in eternal life) are either false or lack rational warrant; (2) many people hold religious beliefs, which requires some explanation; (3) the explanations in the offing may loosen religion’s grip on people since, if true (or found plausible), they will persuade people that they do not hold their religious beliefs for good reasons. None of these points requires a general defense of the reliability of our rational and cognitive faculties, the issue raised by the Plantinga argument. If they aren’t reliable, then all arguments fail to get started in philosophy, not just this one. I’m of the view that no one has a good response to the global skeptic, and that’s what is being asked for here. If that’s a real philosophical problem, it’s a problem for Plantinga as well as Dennett.


Even if we can’t respond to the global skeptic, we can respond to Plantinga’s case for that skepticism. Plantinga’s precise argument turns on some technical details about probabilities, that don’t admit of simple explanation (but which I would have thought were dealt with decisively a few years ago in a paper by Branden Fitelson and Elliott Sober on “Plantinga’s Probability Arguments Against Evolutionary Naturalism” [which I think appeared in Philosophy of Science, not sure about that]). Crudely, Plantinga thinks the probability of our cognitive mechanisms being reliable given the truth of evolutionary naturalism is low; but since we have reason to think our cognitive mechanisms are reliable, we have reason to doubt evolutionary naturalism and, moreover, reason to accept theism (which makes more probable the reliability of our cognitive mechanisms).


This argument involves a lot of quite dubious moves and assumptions: e.g., (i) that the prior probability of evolutionary naturalism being true is about the same as the prior probability of theism being true; (ii) that the reliability of our cognitive mechanisms is to be assessed in toto (but when we parse them into, e.g., perception, mathematical knowledge, decision-making under uncertainty, memory, and so on, it turns out that their reliability varies wildly, and in ways that evolutionary naturalism fits rather neatly (and which theism has a lot of trouble explaining)); (iii) that beliefs and actions are not causally connected in ways that would suffice for natural selection operating on actions to nonetheless favor reliable belief-producing mechanisms; and (iv) that the only ground an evolutionary naturalist has for thinking our cognitive mechanisms are reliable is evolutionary naturalism itself. None of these moves or assumptions are, I think, defensible, and so Plantinga’s argument fails.

I will go out on a limb and venture that Wieseltier, who mimics in summary form Plantinga’s argument, neither understands these issues nor cares about them. I think philosophers should care about them, and I also would have thought that, by this point in time, Plantinga’s clever arguments had been responded to effectively, such that something new is needed by way of counter-argument for any philosophers, not just naturalists, to be worried about them. At best, the Plantinga argument recommends fallibilism, that is, a willingness to admit that one is wrong. But that just aligns Plantinga with the arch-naturalist Quine. Fallibism is a good epistemic posture, at least with respect to hard questions like these. But it hasn’t much to do with Dennett’s attempt to give a naturalistic account of religious belief, or with Wieseltier’s confused comments on that attempt.
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Conscience and Professional Elitism

A loyal MoJ reader (and former student of Michael Perry) wonders whether future FDA approval to sell Plan B over the counter will bring into relief the extent to which professional elitism drives much of this debate by making cashiers the only relevant moral actors in the store:

Do "professionals" have more of a right to scruples than cashiers because wisdom, or at least discretionary judgment, is their stock in trade?  Are "professionals" members of a state-sanctioned cartel with artificial barriers to entry to potential competitors, who should thus have special common-carrier like obligations to the public that the ordinary cashier does not?

One of the distinctive things about pharmacists is that, compared to most members of regulated or "learned" professions, they are these days especially likely to be salaried/hourly employees of large corporations which are not owned or managed by members of their own profession and which derive very substantial revenue from products/services other than those uniquely provided by the pharmacists.  I.e. they often work in the back of what are essentially glorified convenience stores selling condoms, cigarettes, etc. up front.  (Put another way, they have a less effective cartel than we lawyers do!)  I would expect these aspects of their situation may make some of them extra-prickly about "professionalism" and how being a member of a profession is absolutely positively qualitatively different from being a cashier.

Rob

Conscience and Professions

One other difference between the doctors' refusal to participate in the death penalty and pharmacists refusing to sell contraception that I should have noted yesterday:  in one case, doctors are being asked to directly cooperate in the killing of a human being; in the other case, they are being asked to sell someone something that is not even considered evil in itself (oral contraceptives are, as I recall, permitted by the Church for therapeutic purposes).  Despite some efforts to compare contraception to homicide (Grisez compares it variously to homicide, suicide and abortion), I don't find the analogy all that compelling, and I suppose it seems obvious to me that the infringement on individual conscience of requiring someone to directly participate in taking a person's life is substantially more serious than that involved in requiring them to sell a medical treatment to someone when the particular use  to which the customer would likely put the medicine (though not the medicine itself) offends the conscience of the pharmacist.  Just to be clear, this is not to say that I think the pharmacist should be compelled to sell contraception (though I think a case could be made for certain pharmacists in remote locations who have what amounts to a monopoly).  I just think the two cases are different in significant ways.

Those manipulative Catholics!

Just when I thought we were safe from "Five Catholic justices" conspiracy theories, I read this post by John Miller, over at National Review Online:

It's been pointed out that with the confirmation of Sam Alito, five of the nine Justices of the Supreme Court are Catholic. For some, this is merely a bit of trivia. For others -- such as Federation for American Immigration Reform board member Don Collins, writing in the Pittsburgh Tribune -- this is an astonishingly dangerous development:

We now have five male Catholic justices on the U.S. Supreme Court. Most Catholics, particularly women, with whom I talk are highly displeased with this concentration of power and the likely rightward course of women's rights under the new alignment. Evidence of this came sharply to me when I attended a Jan. 11 reception honoring Kate Michelman, recently retired president of NARAL Pro-Choice America. Among those on the dais were her successor, Nancy Keenan, and Frances Kissling, president of Catholics for a Free Choice. All three were raised Catholic and all three are strongly pro-choice.

That's merely silly. But this is appalling:

On Nov. 20, 1975, the American Catholic bishops issued their Pastoral Plan for Pro-Life Activities. This plan is a superbly detailed blueprint of the bishops' strategy for infiltrating and manipulating the American democratic process at national, state and local levels. It called for the creation of a national political machine controlled by the bishops. In large measure, this machine has, dragging along its unwitting evangelical brethren, taken over the Republican Party.

Infiltrating and manipulating? Because Catholics have decided to promote pro-life causes through conventional politics? I don't particularly care for the agenda of the Collins's Federation for American Immigration Reform, but I wouldn't accuse it of trying to subvert our country's democracy because it pursues a political agenda in Washington. But I might accuse its leaders of coming dangerously close to trafficking in anti-Catholic bigotry.

Sigh.

Tuesday, February 21, 2006

Crunchy Cons

Rod Dreher's book on "Crunchy Conservativism" is out.  And . . . there's a blog, too.  (Scroll down; there's a lot of stuff that's consonant with things we talk about here.)  As I've mentioned before:

I cannot help it . . . I am intrigued by, and attracted to, this book (by Rod Dreher) and its thesis (and, I admit, its title):  "Crunchy-Cons:  How Birkenstocked Burkeans, gun-loving organic gardeners, evangelical free-range farmers, hip homeschooling mamas, right-wing nature lovers, and their diverse tribe of countercultural conservatives plan to save America (or at least the Republican Party)."  I'm too lazy to home-school (even though I think it's probably best), I think "organic" is code for "covered with small bits of fecal matter," I hate the smell of Patchouli (which I associate with Birkenstocks); I love Starbucks, the Cheesecake Factory, and the mass-marketing of good beer; but I think that Dreher is on to something.

Check out also this post over at "Get Religion", which excerpts an essay by George Nash:

In Mr. Dreher’s view, consumer-crazed capitalism makes a fetish of individual choice and, if left unchecked, “tends to pull families and communities apart.” Thus consumerism and conservatism are, for him, incompatible, a fact that mainstream conservatives, he says, simply do not grasp. He warns that capitalism must be reined in by “the moral and spiritual energies of the people.” It is not politics and economics that will save us, he declares. It is adherence to the “eternal moral norms” known as the Permanent Things.

And the most permanent thing of all is God. At the heart of Mr. Dreher’s family-centered crunchy conservatism is an unwavering commitment to religious faith. And not just any religious faith but rigorous, old-fashioned orthodoxy. Only a firm grounding in religious commitment, he believes, can sustain crunchy conservatives in their struggle against the radical individualism and materialism he decries. Nearly all the crunchy cons he interviews are devoutly Christian or orthodox Jewish believers who are deliberately ordering their lives toward the ultimate end of “serving God, not the self” — often at considerable financial sacrifice.

Rick