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.

Monday, November 21, 2005

Abortion as a Fundamental Human Right

By Rick Garnett

The Center for Reproductive Rights is pleased.  According to this press release, "the United Nations Human Rights Committee (UNHRC) decided its first abortion case, KL v. Peru.  The decision establishes that denying access to legal abortion violates women’s most basic human rights.  This is the first time an international human rights body has held a government accountable for failing to ensure access to legal abortion services. . . .  The ruling specifically establishes violations to the right to be free from cruel, inhumane, and degrading treatment, privacy, special protection of the rights of a minor. It orders the Peruvian government to provide Llontoy with reparations, and to adopt the necessary regulations to guarantee access to legal abortion."

I'd appreciate comment from those MOJ-ers (and others) who are expert on these matters to inform us (a) whether this "ruling" is really a ruling, or more of an "opinion letter" (which was sought precisely to lay the groundwork for a later "ruling"); and (b) why the international-human-rights enterprise, as currently conducted, deserves Catholics' respect and endorsement.

The Bishops

By Patrick McKinley Brennan

Thanks to Rick for the prod to clarify my view of the Bishops' statements "A Culture of Life and the Penalty of Death."  I didn't mean to communicate "enthusiam" for the document; indeed, I am in complete agreement with some of Rick's criticisms/reservations, and these lead me to give the document a grade of B- on a generous day.  It was my disappointment with much of the rest of what the Bishops did recently in D.C. that led me to give thanks for their continuing, if in a clumsy and analytically-challenged way, their important work of opposing capital punishment in the United States.  The curious thing about the U.S. Bishops today is that, with respect to so many issues, they're so slow to be Bishops.  Take the recent meeting as a sufficient example.  The liturgy should be at the top of their list of things to do right, but instead the annual meeting showed yet more unwillingess to move decisively to bring better liturgical texts into use.  (One doesn't have to agree with me on the merits of the proposed translations to conclude that the "with all deliberate speed" approach to the liturty would leave our forebears rubbing their sacramental eyes).  Similarly, the Bishops have decided to meet with politicians in aid of their forthcoming guidelines regarding the scandal to the faithful that prevents a minister from communicating politicians pursuing certain public courses.  One would have thought that the Bishops would have come up with guidelines and then shared them with those whom they are intended for; instead, the Bishops are conculting non-expert laity on the matter of safeguarding the sacrament and the ecclesial communion.  The Bishops' particular forms of embrace of lay ministry are another example from last week.  They may be technically correct, as Cardinal Dulles seems to think; I couldn't presume to second-guess his Eminence.  But there is also reason to believe that they reflect a growing crisis in confidence in the role of the ordained in the ministerial life of the Church (in the United States).  One can agree with the Council's statements on the laity without welcoming the emergent theology of lay ministry.

It was in this (to me) depressing context that I welcomed the Bishops' fresh opposition to capital punishment.  That said, the analytical problems inherent in what made its way into the Catechism aren't going away.  If what Catechism advances is a prudential judgment about administering the death penalty today, neither the Roman Pontiff nor the U.S. Bishops have a privileged place in reaching this judgment; here they should defer to laity who are competent to judge what is necessary for the protection of the common good.  I agree with Rick that the Bishops are, here again, insufficiently forthcoming about the fact that retribution is a doctrine of punishmeht that the Church (still) approves.  The proper question, from this angle, is whether the penalty of death is disproportionte to a particular convict's culpability; even John Paul II never said that the death penalty is always and everywhere disproportionate.  The Bishops' (and the Compendium's) focus on the non-retributive grounds of punishment obscure the Church's teaching that fault is (a necessary condition) and proper basis of punishment.

I recently discovered Jacques Maritain's last (1970) comment on capital punishment:  "In my opinion it is only in the case of legitimate defense or of defensive war that the putting to death of a human being is not a sin of homicide, and capital punishment is in itself such a sin committed by society."  Is this because he knows that society never will find it necessary to defend itself by killing a culpable malefactor?  Or because death always and everywhere is disproportionate to human wrongdoing?  Maritain certainly believed that civil authorities have the responsibility to punish culpable wrongdoers as justice demands.

Anyway, two cheers for the Bishops on capital punishment.    

The Coming Department of Baby Education

By Rob Vischer

A proposed "national curriculum" for babies and toddlers in the U.K. provides a fascinating case study of how (not) to implement conceptions of the common good while honoring subsidiarity, family autonomy, and cultural pluralism.

Rob

O'Connell on Coercive Interrogation

By Rick Garnett

My friend and colleague, Prof. Mary Ellen O'Connell, has posted on SSRN a new paper, "Affirming the Ban on Coercive Interrogation," that will likely be of interest.  Here is the abstract:

Beginning in 2002, lawyers for the Bush Administration began producing the now infamous legal memoranda on the subject of interrogation. The memoranda advise interrogators that they can torture people without fear of prosecution in connection with the so-called "global war on terror." Much has been and will be written about the expedient and erroneous legal analysis of the memos. One issue at risk of being overlooked, however, because the memos emphasize torture, is that the United States must respect limits far short of torture in the conduct of interrogations. The United States may not use any form of coercion against persons detained in an armed conflict, nor may it engage in cruel, inhuman and degrading treatment at any time. The great effort of the memo writers to restrict torture to the most extreme conduct imaginable obscures the fact that the United States has wider obligations. Avoiding torture is not enough. Interrogators must also respect the broader restrictions on coercive, cruel, inhuman, and degrading treatment.

The legal prohibition has, first, moral, but also pragmatic underpinnings. Apparently some in the Bush Administration have become persuaded that torture, coercion, cruelty and abuse can be effective methods of interrogation and that the need for information outweighs the illegality and immorality of using such means. The weight of the evidence is firmly against the conclusion, however, that forceful interrogation is as reliable as non-forceful methods. Using unlawful means has been counter-productive in effectively responding to terrorism. The evidence on information gathering supports international law's absolute prohibition on torture, cruelty, and coercion.

I am not sure I agree with Mary Ellen's characterization of the Bush Administration's controversial memoranda, i.e., that they "advise interrogators that they can torture people without fear of prosecution in connection with the so-called 'global war on terror.'"  In any event, check it out.

Sunday, November 20, 2005

"Can Jesus Save Hollywood?"

By Thomas Berg

The latest issue of the Atlantic Monthly -- a great magazine, by the way -- has an article by the Washington Post's Hannah Rosin, "Can Jesus Save Hollywood?"  (ADDED NOTE: I forgot to say that the whole article is available to subscribers only; but pick up the issue at the newsstand, as the whole issue is well worth reading.)  The subject is how conservative Christians in Hollywood are moving from (1) outliers to freaks to (2) a noticeable sub-culture, especially as studios got more interested in "religious/moral" projects after 9/11, to (3) simply people who are working in the industry trying to make good films that reflect their worldview without making it the dominant subject of the film.  The focus of her story is on the meetings of Act One, "a Los Angeles program for aspiring Christian screenwriters," where "Bibles are as visible as the hundreds of videos lying around in stacks and on bookshelves, many of which conservative Christians would never let their children watch (American Beauty, Being John Malkovich, The Sopranos, Will & Grace)," and where "Mel Gibson's Jesus gazes down from a movie poster on the wall":

[This] generation makes up the third [wave of Christians in Hollywood as described above]. "They have no interest in this conversation" about how one reconciles one's Christianity with Hollywood, Nicolosi told me. "They think it's like asking why a Latino or a gay person should be in Hollywood." You can see the shape of this emerging generation of Christians in the hundreds of applicants to Act One: a pastor's wife and former teen country singer who wants to write "culture shaping, commercially successful TV shows and films"; an evangelical marooned at Harvard; a woman who used to work in the White House Office of Faith-Based Initiatives. This generation grew up worshipping God and Quentin Tarantino (the latter sometimes secretly). They are the cinematic wing of what the sociologist Alan Wolfe calls the "opening of the evangelical mind," a cultural renaissance among conservative Christians. Though their parents may have taught them to take refuge in a parallel Christian subculture, the movies these people found in Christian bookstores bored and embarrassed them. To be accepted at Act One you have to believe that Jesus is a real presence in your life. But the worst insult you can deliver there is to say that a movie reminds you of such notoriously low-budget Christian schlock as the Left Behind series and The Omega Code, or that the dialogue sounds like "Christianese."

Rosin's pictures of the emerging attitude of younger conservative Christians in the film industry parallels what I know about the move by many in the same generation away from 70s- or 80s=style "contemporary Christian music" and into a broader and more subtle engagement with the pop music world.  Those of us who write about the relationship of Christianity and law, politics, and culture should be aware of developments like this, for they may be the model for how Christians relate to the culture in the next generation or two (and they may govern for lots of young Catholics as well as young evangelical Protestants).

There's a lot to be said, of course, for getting away from the cultural separatism, from the cultural separatism, and from the stereotype that a Christian film is limited to Christian subjects like demons or the end of the world (!).  At the same time, I think that Christian filmmakers had better have a continuing interest in the question "how one reconciles one's Christianity with Hollywood."  There's too much of a danger in any industry -- whether it's Hollywood, investment banking, or legal academia -- of being coopted by values of making money or enjoying success, of treating people as means to these other ends, of giving the audience what it wants, etc., for anyone to ignore the "how do I reconcile?" question for any length of time.

Tom

Saturday, November 19, 2005

Alito ancora!

By Rick Garnett

Ouch! I agree that there is certainly a distinction between Rick's (a) and (b). What is more problematic is whether his (a) and (b) are accurate descriptions of what the Warren Court did and what Scalia is trying to do. If they're not, then athe argument is still on (though I would agree w description (b) re Roe). In any event, between spiedini and risotto rustica for lunch and abacchio arosto and carciofi alla romana for dinner, I spoke at Amy's  fascinating conference on "Relationships in Law: Is there a Space for Fraternity?", which was part of the Focolare's Commune e Diritto project - a very serious attempt to integrate aspects of CST such as fraternity and communion/community into legal theory. one of the speakers, a lawyer involved with one of the  economy of communion's ambitious business ventures/projects, talked about the anthropology of communion -- and understanding of the human person as made in the imago dei, and thus fundamentally in communion with all other human persons -- a profoundly Catholic conception of fraternity. That led me to comment onn how the difficulty of incorporating the relational, communitarian values of CST into corporate law theory was a function of the tension between two anthropologies: that of homo economicus and that of the anthropology of communion--or Catholic legal theory. There were also several other interesting papers, but I must admit that European civil lawyers/profs are capable of flights of abstraction that left me gasping for air. In any event, great job, Amy! Hope you'll blog on this in greater detail.

--Mark

Commonweal and Alito, cont'd

By Rick Garnett

A quick response to Mark (who is loving life and living large in bella Roma):  I agree, as I said, that the Commonweal editorial was, as Mark says, "an extremely fairminded editorial from a liberal mag."  But, in response to Mark's question, yes, I do deny that Justice Scalia is a "radical" and / or an "activist." 

In my view, the extent to which Justice Scalia's -- and even Justice Thomas's -- interpretive method or judicial "philosophy" would have earth-shattering effects of the kind to which Mark alludes is often exaggerated.  As for what the "arch-activists on the Warren court thought they were doing," my sense is that they regarded their project as one of updating and improving the Constitution, not merely correcting wrongly decided cases. 

Mark is right, of course, that words like "activist" don't move the ball much.  Still, there is an important distinction worth drawing between (a) expansive and novel interpretations that have the effect of removing disputed moral and policy questions from the democratic arena and (b) interpretations policing the Constitution's structural features and boundaries and enforcing the idea of limited congressional powers.

More on Commonweal and Alito

By Rick Garnett

I had to take a break from my spaghetti eating here in Rome to respond to Ricks comments on the Commonweal Alito editorial. I must say it was an extremely fairminded editorial from a liberal mag. and I would defend it from Ricks criticisms (though it looks like I am sucking up to our mutual editor). First, I dont think those were scare quotes around "originalism", but rather an attempt to highlight that as a distinctive interpretive approach. More important, does Rick really believe that Scalia are not both radical and activist? Is not Scalia literally radical, in his desire to tear up non originalist modes of constitutional interpretation by their roots, and start again on originalist premises? If he had the chance to write more majority ops than dissents, would not he be very activist. in terms of upsetting prior precedents? And would not Thomas view of the commerce clause have radical consequences, dismantling much of the constitutional basis for federal regulation of business? Of course, the term activist is often just a way of criticizing a judge who would produce results one does not like, hence usable by both the left and right, and not a coherent way to define judicial philosophy. But is it not at least fair to say that the difference between Alito & Roberts on one hand and Thomas and Scalia on the other is that the latter are "Big Idea", top down guys whose very clear, systematic principles would produce a greater and more rapid degree of constitutional change. I do not think this is just a question of willingness to overturn wrong decisions - after all, is that not what those arch-activists on the Warren court thought they were doing? I invite those who know more con law than I do to weigh in on this...

--Mark

PS So far spaghetti a la carbonara, arabiatta, amatriciana, con carciofi, con funghi....

Friday, November 18, 2005

Free Software and Catholic Doctrine

By Rick Garnett

Here (thanks to Tomas Gomez-Arostegui) is an application of Catholic legal theory that had never occured to me:  In this article, "Free Software's Suprising Sympathy With Catholic Doctrine," Marco Fioretti argues both that the "Free Software" movement is consonant with Catholic teachings on work, education, and expression, but also that the Church should, as a "player" in the computer-world, operate in accord with that movement's norms.  Any thoughts?

The Bishops and Capital Punishment

By Rick Garnett

The United States Conference of Catholic Bishops has -- as Patrick reported -- issued a statement on capital punishment, "A Culture of Life and the Penalty of Death."  I agree (I think) with the Bishops' conclusion.  That is, I think we should press our legislatures (but not our courts) to get rid of the death penalty.  I'm not as happy with the statement as Patrick appears to be, though.  Although it is an improvement over the Bishops' last criminal-justice effort -- "Responsibility, Restoration, and Rehabilitation" -- the latest statement is, in my view, disappointing in places.  In a nutshell:  I worry that the Bishops do not take seriously enough the importance of thinking clearly about the purposes and justifications of punishment.

Consider this:  "In Catholic teaching the state has the recourse to impose the death penalty upon criminals convicted of heinous crimes, if this ultimate sanction is the only available means to protect society from a grave threat to human life."  But this isn't right, is it?  (I know it's in the Catechism.  But still . . . ).  The point of "punishment" is not to "protect society" (though the public authority certainly should try to "protect society").  Nor is it to "deter" crimes.  The point of "punishment"  -- and what justifies it -- is retributive justice (often misunderstood as "revenge"). 

If the death penalty is justifiable, it seems to me, it is not because it is "necessary to protect society", but because it accords with, or perhaps is necessary for, retributive justice.  If the death penalty is impermissible, it is not because there are other ways of "protecting society", or because the death penalty does not deter, but because it does not advance or comply with the demands of retributive justice (which are themselves shaped by the demands of the dignity of the human person).

Then there is this:  "The death penalty in our land is deeply flawed. It has been reported that since the 1970s, more than 120 people who were on death row have been exonerated."  Yes, the "death penalty in our land is deeply flawed."  (Is it more "flawed" than "imprisonment" in our land?  Than "tort justice" in our land?)  But, the claim about "exonerated" convicts is seriously misleading.  The statement cites, for this claim, the Death Penalty Information Center (an excellent organization).  What the DPIC actually says is that, since 1973, 122 people have been released "with evidence of their innocence."  That a petitioner advanced, in the context of a legal argument, evidence that -- according to the petitioner -- suggested innocence, does not amount to "exoneration." 

The statement closes with this:

We hope and pray that this campaign will help bring an end to the use of the death penalty. This end may come through an act of Congress or a definitive court decision; more likely the death penalty will be abandoned and wither away through the everyday choices of prosecutors and legislators, judges and jurors, and ordinary citizens who make a commitment to respect human life in every situation. We look forward to the day when our society chooses not to answer violence with violence.

There is, unfortunately, no evidence in the statement that the Bishops considered the possibility that an "act of Congress" that purported to end the death penalty, or a "definitive court decision" that purported to end it, would not be consistent with the rule of law.

There are good things in the Bishops' statement.  And, again, I'm "with them" on this one.  But I'm not satisfied with the statement.

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