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, February 15, 2006

Kelo and Castles

By Eduardo Penalver

I agree with you that most of the public reaction can be understood as expressing the dignitary understanding of the castle metaphor.  In fact, I think that’s probably the more natural way to understand the significance of the home for most people.  I’m interested, though, in the disconnect between that fact and the content of the legislative responses to Kelo, which do not simply target home ownership or even individual property ownership. In other words, the castle metahpor seems to make it matter what kind of property we’re talking about and who owns it, but the legislative responses protect all private property. (In this respect, the Institute for Justice is an easy target though by no means the only offender.  I really don’t have it out for them, it’s just that they’re “Castle Coalition” worked so well with the paper’s focus.) 

As for your point about the connection between protecting property ownership and the role of mediating institutions, I think it’s an important one and well taken.  As with everything related to property, though, I think the answer is a very complicated one.  Certainly some zone of autonomy is necessary for property to serve as a seedbed for mediating institutions.  So, on the one hand, too few property rights will undermine property’s mediating function.  On the other hand, too many property rights can easily lead property-related power to inhibit normative diversity, as happens, I think, when property ownership becomes too concentrated.  Not enough property regulation and redistribution and you get the latter scenario.  Too much and you get the former.  I think this lines up very nicely with Catholic Social Teaching, which emphasizes both the importance of property ownership and the dangers of making property an end in itself.

More on Unborn Human Life

By Michael Perry

MOJ-friend and occasional contributor, Gerry Whyte of Trinity College (Dublin) writes:

"Further to your recent posting on MOJ re start of life [here], last year the Irish
Commission on Assisted Human Reproduction, of which I was a member,
published its report in which a majority, inter alia, rejected the argument
that legal protection for the embryo should commence once fertilisation was
complete. I was the only dissentient on the 'start of life' question. You
can read the full report here.  My dissent is here."

I heartily recommend that MOJ-readers read Gerry's dissent.
_______________
mp

Property metaphors and dignity

By Rick Garnett

Check out Eduardo Penalver's new paper, "Property Metaphors and Kelo v. New London:  Two Views of the Castle."  Here is the abstract:

Much of the popular outcry against the Supreme Court's decision in Kelo v. New London can be understood in terms of the public's commitment to the conception of the home as a castle. This familiar metaphor is typically viewed as aligned with libertarian conceptions of property and of the right to exclude. Taken to its logical conclusion, the metaphor's connotation of an owner's "absolute dominion" would seem to rule out the exercise of eminent domain altogether. A different understanding of the castle metaphor is possible, however, one rooted in notions of the dignity of home ownership. While such a dignitary understanding of the home as the castle remains true to the intuitions underlying the metaphor, it yields a far more flexible stance towards eminent domain.

Eduardo's paper is a bit critical of the Institute for Justice -- an outfit that does (what I think is) great work in the school-choice arena -- but I think he raises good points and worthwhile concerns about the use and occasional misuse of the "castle" metaphor in the eminent-domain debate, and also about the "dignity of home ownership."  (A working paper by a top-shelf scholar named Nicole Stelle Garnett also emphasizes dignitary concerns in this context).  On the other hand, my own impression has been that, in fact, the anti-Kelo outcry has sounded as much in the "dignitary" understanding of property as in (what Eduardo calls) the "despotic dominion" understanding.  And, knowing that Eduardo shares my interest in the Catholic Social Thought tradition, I wonder if he thinks it is possible that, in fact, much of the outcry reflects a concern that hollowed out property rights (i.e., rights that permit forced takings for private development) are less able to perform the "mediating" / subsidiarity-enhancing role that some of us think they should play?

Response to Rick on Pharmacists and Conscience

By Rob Vischer

Rick asks whether my op-ed explaining why the conscience movement among pharmacists is misguided can also be characterized as explaining "why the movement to pass laws overriding a pharmacist's right of conscience is misguided."  The answer is yes, with a caveat: the reproductive rights lobby is misguided in this context not so much for trying to override a pharmacist's right of conscience, but for trying to override a pharmacy's ability to carve out any sort of distinct moral identity.  In other words, the problem lies in the effort to close down the space needed for the meaningful exercise of conscience, not in the effort to override the legal enshrinement of conscience.

An example of that closing space emerged today from Massachusetts, where the pharmacy board ordered Wal-Mart to carry emergency contraception at all of its locations in the state.  As a physician who had recently filed suit against the chain explained, "My patients should not have to shop around."  This nicely underscores the point of my criticism:  if we're going to take moral pluralism seriously in this country, being forced to "shop around" may not be such a bad thing.

Rob

Tuesday, February 14, 2006

CHRISTIAN BIOETHICS

By Michael Perry

Rick asks, in his post below, whether "'bioethics' . . . is anything more than a political movement masquerading as an academic discipline or as moral reflection."  The answer is yes.  Click here to read about a quarterly titled Christian Bioethics:  Non-Ecumenical Studies in Medical Morality, which brings together Catholic, Orthodox, and Protestant writers.
_______________
mp

"Bioethics"?

By Rick Garnett

One has to wonder, is "bioethics" -- as practiced (or sold) in most contexts -- anything more than a political movement masquerading as an academic discipline or as moral reflection?  Check out this announcement for a symposium, "The Legacy of the Terri Schiavo Case:  Why is it so hard to die in America?", sponsored by the University of Pennsylvania's Center for Bioethics.  Consider also this letter, addressed to "friend[s]" of the Center, from Dr. Arthur Caplan, its Director:

From: Arthur Caplan [ mailto:[email protected]]
Sent: Monday, February 13, 2006 4:23 PM
To: [email protected]
Subject: Penn Center for Bioethics


January 2006

Dear Friend,

Do you think that the South Korean cloning scandal could mean the end of embryonic stem cell research? To the opponents of this research it
should. But, the Center for Bioethics is playing a key role in insuring
that ideology does not overwhelm sound science.

The battle over whether the US should permit and fund embryonic stem
cell research has grown especially heated in recent months. While acts
of impropriety regarding cloning have rocked the scientific community,
the failure of one scientist is not grounds for abandoning a promising
area of scientific research.

I am pleased to share with you examples of ways our faculty informed,
challenged and advised policy makers, patient advocacy groups, the
religious community, the media, industry, students, and the public. We
identified the issues, clarified the science and promoted debate on the
ethical, legal and social implications as well as the potential risks
and benefits of stem cell research. On this issue alone, last year
Center faculty:

• testified or helped prepare testimony for legislative committees in
the states of CA, DE, MO and MA; briefed the Lt. Governor of
Massachusetts and a number of candidates for the US Senate;
• addressed many diverse groups and fielded literally hundreds of media
inquiries;
• helped organize and testified at a hearing on the Penn campus with
members of the Democratic caucus from the Pennsylvania legislature;
• sponsored public forums together with the College of Physicians of
Philadelphia, WHYY Public Radio in Philadelphia, Temple University, the
University of Louisville, Committee for the Advancement of Medical
Research, Biotechnology Industry Organization (BIO) and the University
of Oslo in Norway;
• published key articles in a variety of peer-reviewed journals. (Our
study on embryo disposal practices at fertility clinics was requested
often and cited frequently in policy debates in this country and abroad.);
• published an article comparing policies in the UK and the USA on
governance of fertility treatment programs including handling of eggs
and embryos for research;
• assisted the National Can cer Institute, IBM and the National Disease
Research Interchange in beginning to formulate policy about ownership
and access to various forms of stem cells.

We believe that our efforts are empowering policymakers, the media, and
your elected officials with the knowledge to understand the issues
better, and increasing the chances that they will support potentially
life-saving research. Shaping public opinion and policy could, in turn,
make a difference between life and death for some, and quality of life
for many. As you know, stem cell research is but one area where the
Center is having an impact. In the coming months, you will be hearing
from me about other critical areas where the Center is helping to make a
difference.

I thank you in advance for your interest and continued support.

Sincerely,

Arthur L. Caplan, Ph.D.

Nussbaum on Williams and Toleration

By Rick Garnett

An item from the University of Chicago Law Faculty blog:

Martha Nussbaum is working on a book on religion and the Constitution. A portion of the research on the book led to her January 31, 2006 entry into the Chicago's Best Ideas series, entitled "The Roots of Respect: Roger Williams and Religious Fairness." Martha's talk explores Williams's interesting and prescient (although long and dense) writings on the subject, and explains why Williams has a lot to say to those who believe separation of church and state is an idea created by non-religious people. You can listen to the talk and discussion here.

Those interested in Williams, religious freedom, and conscience might also be interested in this paper, "The Tenuous Case for Conscience," that Steve Smith did in connection with a celebration of Williams's 400th birthday.  He asks, among other things:

When we reverently invoke "conscience," do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what "conscience" is or why it matters?

Rob's op-ed on conscience clauses

By Rick Garnett

I appreciate Rob's typically eloquent op-ed on the conscience-clause debate.  I wonder, though:  Wouldn't it be just as accurate to characterize the piece as being about "why the movement to pass laws overriding a pharmacist's right of conscience is misguided" (as opposed to, "why the movement to pass laws protecting a pharmacist's right of conscience is misguided")?  It is one thing to think, as I take it Rob does, that pluralism on this matter is better than a mandate in either direction.  But, if we take it as given (and I think we might as well take it as given) that the clear momentum is in favor of anti-conscience mandates, then I'm not sure that Rob's good points about pluralism, free association, etc., should lead us to oppose -- as a defensive, second-best measure -- laws protecting the right of conscience.  Rob?

Romance & Altruism

By Rob Vischer

It seems that a romantic relationship is beneficial not only for the participants, but for the broader society as well.  A study by the National Opinion Research Center at the University of Chicago finds a link between romantic love and altruistic behavior.  Other interesting findings include links between prayer and altruism, and between being raised in a two-parent family and altruism.

Rob

Can a Catholic University be Great: The Viewpoint of a former Stanford professor

By Michael Scaperlanda

Notre Dame history professor, Brad Gregory, recently wrote an essay, which was published in the school's newspaper, on the subjects of academic freedom at Catholic universities and whether Catholic universities can acheive greatness.  The beginning ot this essay follows: 

"In 2003, I left a tenured position at Stanford University, where I had taught for seven years, to come to Notre Dame. I did so partly because here, unlike at secular universities, we can engage religion in the classroom not only as a subject to be studied like any other, but as a human response to the living God. Here we can engage not only Catholic but also other religious beliefs in this way, because of Catholic imperatives to ecumenical understanding and interreligious dialogue. At secular universities, categories characteristic of revealed religions - including faith, revelation, grace, salvation, sin, prayer, miracles, the supernatural and more besides - cannot be pursued from standpoints of religious belief, without presumptive recourse to reductionist explanations dependent on secular beliefs embedded in social scientific and humanistic theories. In the classrooms of such institutions, neither students nor faculty can seriously address religiously related big questions - about life’s purpose, objective values and meaning that transcends human constructions - because the governing ideology is anti-teleological. It is antagonistic to any objective moral norms and naturalistic in its metaphysical convictions. At secular universities, a professor who in class sought to analyze prayer as a human experience of relating to God, or who sought to understand the Bible as God’s saving revelation for humanity, would quickly find herself censured. A Solemn Authority would admonish her that such notions were “inappropriate” in class and that she must keep her “personal beliefs” to herself. Secular universities restrict academic freedom because they exclude from the classroom engagement with religious beliefs precisely as religious. The secular academy thus puts itself in the curious position of excluding from non-reductionist consideration the beliefs by which the overwhelming majority of the human race lives. Such self-censorship is dangerous. Because of the sometimes threatening manifestations of religion in our world, the stubborn refusal even to acknowledge religion as religion and to study it as such amounts to an ivory-tower dereliction of intellectual duty.

Notre Dame rejects these secular restrictions on academic freedom vis-à-vis the great religions and their related ultimate questions. Hence I am much freer academically and pedagogically here than I was at Stanford - I can do everything I did as a Stanford professor and more. The same freedom applies to other faculty members at Notre Dame and, in its respective way, to students as well. As an intellectual community we have critically important academic opportunities that are lacking at higher-ranked, secular institutions and vitally needed by the wider world. . . ."

Previous Articles More Articles

Recent Posts

Categories

Monthly Archive