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.

Saturday, December 17, 2005

Coleman on Religious Liberty

The Nov. 28 issue of America includes this article (subscription required, unfortunately), "Religious Liberty:  Unfinished Items from the Council," by Fr. John Coleman, S.J.  In the article, Fr. Coleman reflects -- on the occasion of the document's 40th anniversary -- on the content and legacy of Dignitatis humanae, the Second Vatican Council's Declaration on Religious Liberty.  He poses three questions:   "What was at stake at Vatican II in approving the declaration?  What are [the document's] achievements but also its limits, flaws and lacunae?  And how does a retrospective reading of the text and its history provoke new questions about religious liberty today?" 

These are good questions.  I'd invite MOJ-ers and readers to send in answers!

With respect to the first question, Fr. Coleman describes the concerns of and moves made by the Council's "progressives" and "conservatives" [RG:  It is not clear to me that these terms are helpful.  After all, Karol Wojtyla was a strong supporter of Dignitatis].  For some, the Declaration was essential to efforts to engage credibly in ecumenical dialogues with those of other (or no) religions.  For others, the concern was the the Declaration might short-sell our obligations to the Truth. 

Turning to the second question (re: achievements and limits), Coleman notes, among other things, that the document said little about past failings by the Church -- or, at least, by Church members and leaders -- to respect the no-coercion and human-dignity principles proposed in the Declaration.  (That is, the Declaration, he suggests -- following Judge Noonan -- failed to deal with history).  Coleman also notes that the document avoided "the telling issue of freedom within the church."  [RG:  I'm not sure this is a failure, or a troubling "lacuna", in the Declaration.  It seems to me that the issue of religious freedom -- thought of as immunity in matters of faith from state coercion and as the Church's own freedom from political control -- is fairly distinguished from what Murray called the "theological meaning of Christian freedom," the examination of which might well require us to think about authority, disagreement, and dissent within the Church].

Finally, turning to "new questions about religious liberty," Coleman suggests that "the tension . . . between the duties toward truth on the one hand and, on the other, the objective grounding of freedom in human dignity . . . remain unresolved."   He also says -- after asserting that, in John Paul II's writings, we see a "theory of civil law that is excessively entangled with theological doctrine" -- that "[t]he dangers of any establishment (to the church, the state and genuine religious feedom) still need to be addressed.  [RG:  Here, Coleman -- and Leslie Griffin, whom he quotes -- seems to be falling into the mistakes of thinking (a) that Murray thought a "religiously neutral" state was one whose civil laws did not purport to reflect moral truths and (b) that it is an "establishment" of religion for the public authority to prohibit or regulate conduct on the ground that such prohibitions or regulations are consistent with moral truths about the human person.]

Anyway . . . maybe America will make the link available soon.  For now, track down the article and check it out.   

Friday, December 16, 2005

Problems with Typepad

As readers might have noticed, there are some problems with Typepad that have caused the last week or so of MOJ posts to disappear.  I'm told that wheels are in motion.  So, keep checking back!

Thursday, December 15, 2005

Michele Pistone on STEP OUT Migration

A few weeks ago, I invited Professor Pistone to comment on the Church's attitude toward "brain drain" migration.  I then left town and left her email sitting in my inbox.  I have pasted it below.  And, although it is long, it is well worth the read.

Professor Pistone:

Thank you, Michael, for inviting me to discuss my work and how the recent World Bank report on migration relates to it.  I also thank you for your kind words here and here about my “thought-provoking” book (co-authored with my husband, John J. Hoeffner, who also helped out on this post).  I should note, however, that if the book is thought-provoking, one very big reason why is that you generously commented upon an early draft of it.  Of course, I had to be wise enough to listen!

As for the book (“Stepping Out of the Brain Drain: Catholic Social Teaching in a New Era of Migration”), let me start by quoting the two-sentence description we recently drafted in response to a request from our publisher’s crack publicity machine:

            Catholic social teaching’s traditional opposition to “brain drain” migration from   developing to developed countries is due for a reassessment.  Stepping Out of the Brain Drain provides exactly this, as it demonstrates that both the economic and the ethical rationales for the teaching’s opposition to “brain drain” have been undermined in recent years, and shows how the adoption of a less critical policy could provide enhanced opportunities for poor countries to accelerate their economic development.

(Can you tell neither of us has any experience writing advertising copy?).

Anyway, it is remarkable how often the book’s various concerns have been touched upon by recent writings.  There is, of course, the very recent World Bank annual report referenced by Michael, Global Economic Prospects 2006: Economic Implications of Remittances and Migration.  A month earlier, a 273 page World Bank research report was released (International Migration, Remittances & the Brain Drain).  Recently, Gary Becker, the Nobel Prize-winning economist, published a piece in the Wall Street Journal called “Give Us Your Skilled Masses.”  And recent days on Mirror of Justice have seen numerous postings on the degree of assent required by Catholics to the magisterium’s teachings, which of course include the social teachings.  Finally, there’s Stephen Bainbridge’s post on usury, which is where I’d like to begin.

If I might summarize Stephen’s very informative post:  the Church (and others) frowned upon charging interest when, basically, only the wealthy had money, the poor majority were likely to need money for the most basic of necessities, and there was no market economy to speak of in which one could invest.  Under these circumstances, a prohibition on charging interest is highly defensible.  Indeed, if absolute power corrupts absolutely, who has more power than a rich person faced with a plea from a starving poor person who needs a loan to survive?

There is still a recognition in the law that vast differences in bargaining power can cause inequities for which the law must provide a remedy.  But there is also a recognition that good in the form of a more productive and creative economy can come from the availability of credit, and that most credit exchanges are entered into in order to preserve the purchasing power of one’s savings and to enhance (rather than to save) one’s life, e.g., my need for shelter doesn’t require me to get a mortgage, but I want one so that I can raise my daughter in a nice place and have a room (or two) of my own to go to when my husband becomes too annoying.  Over several millennia, in other words, the normal case has changed from one in which the charging of interest was likely to harm the common good and offend human dignity to one in which both the common good and human dignity could be enhanced by the availability of credit.  This change should make (and I think has made) a difference in the Church’s position.

Our book makes a similar argument, only with respect to highly skilled migration (which, utilizing an acronym we developed, we call STEP OUT migration in a probably quixotic effort to stamp out the terribly loaded “brain drain.”).  The old brain drain, er, I mean STEP OUT, literature was overwhelmingly negative toward highly skilled migration.  And there is a negative case to be made: the country of origin, for example, can lose the substantial investment it has made in the education of the migrant; it can suffer by losing skills in short supply; and it loses tax revenues the migrant might have provided.        

But is the negative case the whole case?  We think not, and a substantial new literature makes the argument.  The positive case for highly-skilled migration makes many points, e.g., the “brain drain” is ameliorated and perhaps even outweighed by the increased incentive for education that the possibility of emigration provides; the prospect of return migration, i.e., “brain return,” confers many benefits and is occurring with increasing frequency; and the persistent underutilization of educated persons in many countries (at least for certain careers) makes the impact on developing nations less draining than it at first might appear.

The core of the new thinking, however, emphasizes that the creation of well educated diasporas can bring positive benefits through exchanges of information and the development of contacts.  Some of the more easily measurable benefits include increases in remittances (which both recent World Bank publications focus upon), foreign direct investment, and trade.  Such migration also can increase origin countries’ influence in receiving countries – during the 2004 Presidential election, for example, U.S.-based Indian professionals mobilized in the

U.S.

to moderate the parties’ positions on offshore outsourcing.  Another benefit, difficult to measure but undeniably present in some degree, occurs when migrants devote themselves to using the resources of a developed nation to develop technologies that will be especially beneficial to their home country.

All things considered, does the positive case outweigh the negative one?  Gary Becker thinks it does.  His Wall Street Journal article calls for increases in highly skilled migration and states that it “usually benefits the sending and receiving country.”  The World Bank’s annual report frames a similar conclusion a little less enthusiastically:  “In some instances, high-skilled emigration has a negative impact on living standards of those left behind and on growth . . . [b]ut high-skilled migration is often beneficial for origin countries.” (page 67).

Should these assertions – and the many studies that support them – be enough to lead the Church to change its position?  After all, there are a lot of qualifiers in the preceding paragraph: “usually,” “some instances,” “often.”  Despite these words, our answer is an unqualified yes.

The reason why gets into questions of the relationship between – and the differences between -- fundamental moral principles and prudential judgments.  For the Church, opposition to brain drain stems from the application of the two fundamental principles of the common good and human dignity.  Adherence to these principles should be unyielding.

But the prudential judgment that highly-skilled migration should be discouraged because it offends human dignity and the common good deserves no permanent place in the social teaching.  The continued viability of that judgment is contingent upon a host of economic and technological understandings that time may prove to have been unfounded from the start, or which may have become unfounded in the course of time.

In particular, in deciding whether the prudential judgment to oppose brain drain remains appropriate, it matters whether the effect of brain drain on economic development is negative, positive, or mixed; it matters whether development might be expected to occur quickly or not; it matters whether trade or an insular self-sufficiency is the cornerstone to economic growth; it matters whether and to what extent technology allows migrants to keep in touch with and assist their home countries even when away; it matters whether or not, over the last 40 years, nations that have experienced substantial brain drain also have experienced good growth; and it matters whether or not, on the individual and national levels, brain drain is appropriately regarded as a permanent or temporary phenomenon.

Over the course of the last four decades, the consensus answer to every one of these matters changed substantially, sometimes because the world changed, and sometimes because our understanding of the world changed.  But in all cases, the change was in a direction that weakened the foundations of the prudential judgment against skilled migration, perhaps especially from the perspective of a person concerned about the common good and human dignity. 

Given this historical development, the prudential judgment against highly-skilled migration appears much shakier than it did 40 years ago and, at best, on no firmer ground than the opposite judgment.  Under these circumstances, fidelity to the prudential judgment may very well mean practical support for a policy that disserves in some ways fundamental human dignity and common good concerns.  In our view, the Church should not maintain a judgment that places it in such a position.  Instead, in this case, it should adopt a neutral position, while trying to ameliorate the negative effects and trying to maximize the positive effects of highly-skilled migration.

I know I’ve run very long here, so I’ll be merciful and note my last point very briefly.  We believe that additional support for our position, albeit support of a different type, can be found in the three great social encyclicals of Pope John Paul II:  Laborem Exercens, Sollicitudo Rei Socialis, and Centesimus Annus.  Together, these three encyclicals give a heightened emphasis to the nature and purpose of work and, more explicitly than ever before, place the right to pursue freely the work of one’s choosing high among the hierarchy of fundamental rights.  Centesimus Annus also emphasizes that certain structural preconditions may be necessary in a society in order to ensure an adequate realization of the right.  The Pope’s articulation of these points implies an increased recognition of the magnitude of the affront to human dignity that occurs when the opportunity for creative work is denied, and thereby implicitly strengthens the ethical case for skilled migration (or, perhaps it is better to say, weakens the case against skilled migration).

By the way, if some of this post has sounded familiar to any of the Mirror of Justice regulars, that’s probably because you have heard it before – from me, two years ago at the first Journal of Catholic Social Thought conference at Villanova.  That was when I was pregnant but before I became a mother, which means that birthing a child must be easier than birthing a book.  But, after much hard labor, the book will come out, too – in only six more months, I’m told.

Catholic Legal Theory and Deconstruction

Jack Balkin has posted his article, "Deconstruction's Legal Career," in which he attempts to set the record straight on what legal deconstruction is and is not:

First, legal deconstruction does not assert that legal texts have no meaning or that their meanings are indecipherable. Rather, it argues that texts are overflowing with meanings that point in different directions and emerge over time. Second, one deconstructs conceptual oppositions not to show that legal concepts have no boundaries, but that their boundaries are fluid and appear differently as the conceptual opposition is placed into new interpretive contexts. Legal deconstruction asserts that legal distinctions are nested oppositions - conceptual oppositions whose terms bear a relation of mutual dependence and differentiation; this complicated relationship is revealed as interpretive contexts change. Ideological drift, in which concepts change their political valance as they are repeatedly invoked at different points in history, is a special case of this phenomenon. Third, instead of asserting that legal doctrine is radically indeterminate, legal deconstruction suggests that social construction places ideological constraints on legal decisionmaking and helps produce the sense that some arguments are better than others. Finally, far from denying the existence of fundamental human values, legal deconstruction presupposes a transcendent value of justice which law attempts to express but always fails fully to articulate.

I've never thought of our project as deconstructionist, but as described, isn't this what we're trying to do in exploring points of critical engagement between American law and the moral anthropology embodied in the Catholic intellectual tradition?

Rob

Steve Bainbridge, Take Note!

The New York Times
December 15, 2005

The Holy Capitalists
By DAVID BROOKS   

What explains success? What forces drive some nations and individuals to move forward and grow rich while others stagnate? These happen to be the most important questions in the social sciences today.

In the scholarly arena, you see an array of academic gladiators wielding big books and offering theories.

Over here are the material determinists. Jared Diamond, with his million-selling "Guns, Germs, and Steel," says the West grew rich not because of any innate superiority, but because Europeans happened to have the right kinds of plants. Felipe Fernández-Armesto, with his tome, "Civilizations," argues that success is determined by climate and geography.

Over there are the cultural determinists. Thomas Sowell argues that ethnic groups develop their own skills and values and thrive or suffer as they compete, conquer and migrate. In his great opus, "The Wealth and Poverty of Nations," David Landes shows how cultural mores shaped European empires and the Industrial Revolution.

Now another academic heavyweight has entered the arena. In his new book, "The Victory of Reason," the Baylor sociologist Rodney Stark argues that the West grew rich because it invented capitalism. That's not new. What's unusual is his description of how capitalism developed.

The conventional view, embraced by most of his fellow cultural determinists, is that during the Renaissance and Reformation, Europeans shook off the authority of the Catholic Church. When a secular world was created alongside the sacred one, when intellectual freedom replaced obedience to authority, capitalism and scientific advances were the result.

That theory, Stark says, doesn't fit the facts. In reality, capitalism developed in the Middle Ages, and the important innovations were made by people in the belly of the faith. Religion didn't stifle economic and scientific ideas - it nurtured them.

Stark is building upon the recent research that has reversed earlier prejudices about the so-called Dark Ages. As late as 1983, the esteemed historian Daniel Boorstin could write a chapter on the Middle Ages entitled "The Prison of Christian Dogma."

But the more we learn, the more we realize that most of the progress we link to the Renaissance or later years actually happened during the Middle Ages. Roughly a hundred years before Copernicus, Jean Buridan (circa 1300-1358) wrote that the Earth is an orb rotating on an axis. Buridan, a rector of the University of Paris, was succeeded by Nicole d'Oresme (1323-1382), who explained why the rotation of the Earth doesn't produce wind.

Other medieval Scholastics made the same sort of discoveries in economics and technology. Five hundred years before Adam Smith, St. Albertus Magnus explained the price mechanism as what "goods are worth according to the estimate of the market at the time of sale."

Catholic monasteries emerged as capitalist enterprises, serving not only as manufacturing and trading centers, but also as investment houses. And engineers invented or commercialized a vast array of technologies: the compass, the clock, the round-bottom boat, wagons with brakes and front axles, water wheels, eyeglasses, and so on.

These innovations and discoveries, Stark argues, were not made by the newly secular, but by people who had a distinctly Christian sense of the sacred. Catholic theology had taught them that God had created the universe according to universal laws that reason could discover. It taught that knowledge and history moves forward progressively, so people should look to the future, not the past.

The church recognized the dignity of free labor at a time when most other cultures did not. It valued private property and emphasized the essential equality of human beings despite their unequal incomes and stations.

This history is important today. (And not only because Albertus Magnus knew more about reconciling faith and reason 700 years ago than the bogus culture warriors do now.) It's important because whether we are dealing with poverty around the world or at home, it is not enough to simply liberate people and assume they will automatically pursue economic prosperity. People need to be instilled with certain beliefs, like the belief that the future can be better than the present and that individuals have the power to shape their own destiny.

Ideas and culture drive civilizations. The Catholic Church nurtured one of the most impressive economic takeoffs in human history. Today, as Catholicism spreads in Africa and China, it's important to understand the beliefs that encourage people to work hard and grow rich.
_______________
mp

Wednesday, December 14, 2005

Free Will and Moral Responsibility

Brian Leiter has posted John Martin Fischer's overview of the current debate(s) within philosophy about free will and moral responsibility.  This seems to be the sort of extralegal academic conversation that should be central to the Catholic legal theory project.

Rob

Christmas cancelled by court!

It appears that the "War on Christmas" has been taken to the next level.  If this story from The Onion is reliable (ed.:  Why wouldn't it be?):

[L]iberal

U.S.

9th Circuit Court of Appeals Judge Stephen Reinhardt ruled the private celebration of Christmas unconstitutional Monday.  Per the court order, city workers take down the Christmas tree from

New York

's

Rockefeller

Plaza

.

"In accordance with my activist agenda to secularize the nation, this court finds Christmas to be unlawful," Judge Reinhardt said. "The celebration of the birth of the philosopher Jesus—be it in the form of gift-giving, the singing of carols, fanciful decorations, or general good cheer and warm feelings amongst families—is in violation of the First Amendment principles upon which this great nation was founded."

Bill O'Reilly . . . call your office!

Tuesday, December 13, 2005

Narnia, Toynbee, and the Lion of Judah

MOJ-friend John O'Callaghan has a useful post up at the Notre Dame Center for Ethics and Culture's blog, trying to assist Polly Toynbee in understanding the whole Christ-the-Lion thing:

Not only does it seem to be the case, as Ms. Toynbee points out, that the English public can no longer understand artistic references to "agony in the garden", "deposition", "transfiguration" or "ascension," but in the person of Ms. Toynbee, who does not like the reference to Aslan as a lion, preferring only the lamb imagery, they also seem to have lost all sense of such literary biblical references as "the lion of Judah," a reference that Christians have for millennia taken to be a reference to Christ[.]

Rule of Law and Hierarchy

Patrick asks: 

Is it surprising that, in a (Catholic) culture that increasingly denies the divinely-ordained hierarchical structure of that perfect and juridically-structured society that is the Church, the bishops would fail to act in a way that would require them to acknowledge their munus as law-bound rulers of the Church?

Whoever constitutes this "(Catholic) culture that increasingly denies the divinely-ordained hierarchical structure," it is certainly not the bishops themselves.  I think this question ignores the very predictable tendency of non-participatory, authoritarian regimes to disregard the law as it applies to their own wrong-doing.  Accordingly, it seems to me highly unlikely that the solution here would be even more blind deference to the hierarchy's "divinely ordained" status.

VIII

Amy, You're right, listening is crucial.  But listening, though necessary, is not sufficient.  You're certainly also right that the Church must make the Good News known in a way that is beautiful, attactive, and meaningful.  The Church fails to do her work when the message is lost in transmission, and too often, due to the negligence or incompetence of the pastors, this happens.  But what the Church has, that we as individuals do not, is the capacity authoritatively to hand on the deposit of the faith.  What I hear, out on this limb, is a lot of people, you not among them, who despair because there is no way from here to the truth.  Thanks to you, Steve, Rich, and so many others for opening up and pursuing this discussion!

PMB