"Absolutizing what is not absolute but relative is called totalitarianism." Pope Benedict XVI, World Youth Day, Cologne 2005
Monday, August 22, 2005
A Word from Pope Benedict
More CST Reading
Susan is quite right about the Naughton books. They are important applications of CST concepts to questions central to corporate law scholars: what is the purpose of the corporation? For whose benefit should the corporation be managed? Are CST norms reconcilable with more mainstream norms of corporate governance? Many of the contributors to these volumes are business ethicists rather than legal scholars, but their concerns are relevant to our own. Loyal MOJ readers will remember that Steve Bainbridge and I have beaten these ideas to death, but they are becoming of interest to others. I will be working with Mike Naughton and others on a conference on "The Good Company" in Rome next fall (2006). Amy Uelmen's Focolare group is addressing these concerns thru their Economy of Communion lens in a conference in November at Castel Gandalfo. An institute at St. Mary's University in California has something cooking for fall of 06 as well.
Some other useful reading in the area -- which also cocerns the broader question of Catholic views on government regulation of or intervention in the economy -- was spawned by the 1984 US Bishops Pastoral Letter "Economic Justice For All." Heavily influenced by David Hollenbach, the letter was very controversial, and is an excellent locus for consideration of the extent to which CST can or should influence questions of social policy (and the legal implemenataion of that policy). Two collections that reflect the different sides of the debate are Gannon (ed) THE CATHOLIC CHALLENGE AND THE AMERICAN ECONOMY,; and Rasmussen & Sterba (ed), THE CATHOLIC BISHOPS AND THE ECONOMY: A DEBATE. A scholarly and theoretical discussion of these issues is McCarthy & Rhodes, ECLIPSE OF JUSTICE: ETHICS, ECONOMICS & THE LOST TRADITIONS OF AMERICAN CATHOLICISM. I would be amiss in not mentioning Michael Novak's critical discussions of all this in his many works, particularly his CATHOLIC SOCIAL THOUGHT AND LIBERAL INSTITUTIONS. An emerging issue is how CST makes sense of the prescriptive claims of neoclassical economics and law & economics: most of the relevant literature is in Italian, but a starting point in English is Bruni, ed., THE ECONOMY OF COMMUNION.
With respect to CST in general, I forgot to mention what I think is the best starting point, Charles Curran's CATHOLIC SOCIAL TEACHING, 1891-PRESENT. We often forget the Europeans and others working in the field. For a good selection of their work see, Boswell et al (eds), CATHOLIC SOCIAL THOUGHT: TWILIGHT OR RENAISSANCE?
-Mark
Mark's List of CST Reading
Mark's advanced list of CST literarure is a good start. Just a reminder that in addition to readings with a broad coverage of CST, there are a number of books that address applications of Catholic thought to particular questions/legal areas that should be included as well. The couple that jump to mind are:
Massaro and Shannon, Catholic Perspectives on Peace and War
Cortright and Naughton, Rethinking the Purpose of Business: Interdisciplinary Essays from the Catholic Social Tradition.
Naughton, Managing as if Faith Mattered
A Reading List for Catholic Legal Theory?
Mike's request for a reading list for folks interested in Catholic legal theory is an important one, and the list from his friend at Ave is a start, but I think the question has to approached in a more complicated manner.
First of all, many of the texts in that list (Plato, Aquinas, Augustine, etc.)are so foundational that they sit awkwardly, although they are obviously essential. I would start off by asking first what foundation should a a legal scholar have before even thinking about trying to do Catholic legal theory. The cornerstone of course is a a good education in the Western philosophical, jurisprudential and theological tradition, beginning of course with Plato and Aristotle, and then Augustine, Aquinas and then the next rank of Christian thinkers. We could argue all day about who else belongs in the "foundation" or "canon," but that would be pointless. Let's just say that tackling the kinds of issues we are interested in requires an awfully good education in philosophy and theology.
Second, I would not want to describe "Catholic legal theory" as coterminous with natural law. Natural law is both broader (having secular versions for example) and narrower (aspects of Catholic legal theory are based in moral theology, the casuistic tradition, Scripture and Catholic social teaching). In other words, understanding and use of natural law is necessary, but not sufficient.
Third, missing from the list presented is the vast literature on Catholic social teaching, which is absolutely essential to the application of Catholic perspectives to a broad range of social issues relevant to law. I'll list some texts below. I think a focus on natural law emanating from Ave and an emphasis on Catholic social teaching emanating from Villanova (or at least from me) suggests some broader differences in conceptualization of the basic questions.
Fourth, I'm on shaky ground here because of my relative ignorance of the subject, but it strikes me that Christian ethicists have long been wrestling with a problem similar to ours: is there a distinctive Catholic approach to law (ethics)? I think we need to be familiar with what's been done by those folks.
Fifth, we need to be familiar with what our Protestant and Reformed colleagues are doing with their traditions with respect to understanding law. Both the differences and convergences are instructive.
Sixth, Catholic political theory (e.g. Maritain, as suggested) is of obvious relevance to law, as is Catholic economic theory.
My list thus would be an "advanced reading list" that assumes pre-existing familiarity with what I have called the philosophical, jurisprudential foundation, as well as with Catholic doctrine (the Catechism, for example), and thus would not include that huge literature. It would include the texts on natural law previously suggested, as well as some Christian/Catholic political theory. It also would include some texts in Christian/Catholic ethics, but I would leave it to someone else to educate us on those. I would however offer the following:
CATHOLIC SOCIAL THOUGHT
O'Brien and Shannon, CATHOLIC SOCIAL THOUGHT: THE DOCUMENTARY HERITAGE
Dorr, THE OPTION FOR THE POOR: A HUNDRED YEARS OF CATHOLIC SOCIAL TEACHING
Mich, CATHOLIC SOCIAL TEACHING AND MOVEMENTS
Anything by David Hollenbach
CHRISTIAN/CATHOLIC POLITICAL THEORY
Murray, WE HOLD THESE TRUTHS
O'Donovan & Lockwood, BONDS OF IMPERFECTION
Same (eds), FROM IRANEUS TO GROTIUS: A SOURCEBOOK IN CHRISTIAN POLITICAL THOUGHT
Insole, THE POLITICS OF FRAGILITY
Douglas and Hollenbach (eds), CATHOLICISM AND LIBERALISM
OTHER CHRISTIAN TRADITIONS
Witte, LAW AND PROTESTANTISM
This is just an off-the-cuff list designed to keep the conversation rolling. I think another question triggered by Mike's request is one very important to me as a dean: where are we going to find the people who have the kind of foundation I've described, who are also grounded in Catholicism, and interested in applying all that in their teaching and scholarly careers?
-Mark
Another Book ...
Here's an addition to the Booklist for Catholic Legal Theory:
Jean Porter, Nature as Reason: A Thomistic Theory of the Natural Law (Eerdmans 2005).
Professor Porter is a member of the theology department at Notre Dame.
__________
mp
"Robustness" and Regulating Vice
I have not yet read Prof. Leitzel's paper, referred to in Rob's post, but it is hard to see how the robustness principle could be limited. Once one says that state action is justified based on the fact that actors make less than rational choices, that opens a broad sphere in which the state can act to protect one from the personal harms caused by one's irrational choices. Based on irrational choice and level of harm, one can argue that there is more justification for the government to regulate everyone's calorie content and diet than some of the vices Leitzel mentions. I'd also be worried about whose idea of "their own good" is being promoted. I'd be interested in hearing ideas for how the principle (which I agree with Rob is intriguing from the standpoing of promoting human flourishing) could be framed in a way that limits it.
Booklist for Catholic Legal Theory
Professor Lee Stang (Ave Maria) offers a list that places heavy emphasis on natural law sources:
St. Thomas Aquinas, Summa Theologica
Aristotle, Nicomachean Ethics
Aristotle, Politics
Alasdair MacIntyre, After Virtue
John Finnis, Natural Law and Natural Rights
Russell Hittinger, First Grace
Robert P. George, In Defense of Natural Law
Catechism of the Catholic Church
Yves Simon, Theory of Democratic Government
St. Augustin, City of God
Heinrich Rommen, The Natural Law
Jacques Maritain, Man and the State
Plato, Republic
James Gordley, The Philosophical Origins of Modern Contract Doctrine
Thanks Lee!
Regulating Vice
The University of Chicago's James Leitzel has posted a new paper, From Harm to Robustness: A Principled Approach to Vice Regulation. Here's the abstract:
John Stuart Mill's harm principle maintains that adult behavior cannot justifiably be subject to social coercion unless the behavior involves harm or a significant risk of harm to non-consenting others. The absence of harms to others, however, is one of the distinguishing features of many manifestations of vices such as the consumption of alcohol, nicotine, recreational drugs, prostitution, pornography, and gambling. It is therefore with respect to vice policy that the harm principle tends to be most constraining, and some current vice controls, including prohibitions on prostitution and drug possession, violate Mill's precept. In the vice arena, we seem to be willing to accept social interference with what Mill termed self-regarding behavior. Does consistency then imply that any popular social intervention into private affairs is justifiable, that the government has just as much right to outlaw skateboarding, or shag carpets, or spicy foods, as it does to outlaw drugs? In this paper I argue that advances in neuroscience and behavioral economics offer strong evidence that vices and other potentially addictive goods or activities frequently involve less-than-rational choices, and hence are exempt from the full force of the harm principle. As an alternative guide to vice policy, and following some direction from Mill, I propose the robustness principle: public policy towards addictive or vicious activities engaged in by adults should be robust with respect to departures from full rationality. That is, policies should work pretty well if everyone is completely rational, and policies should work pretty well even if many people are occasionally (or frequently) irrational in their vice-related choices. The harm and robustness principles cohere in many ways, but the robustness principle offers more scope for policies that try to direct people for their own good, without opening the door to tyrannical inroads upon self-regarding behavior.
I glanced at the paper, and he seems to focus on the use of addictive drugs. In this context, his "robustness" principle as a justification for regulating irrational behavior seems to comport nicely with Catholic legal theory by equipping the state to cultivate an environment where authentic human flourishing can occur, rather than simply looking to maximize individual autonomy. I would become a bit more cautious, however, if the principle is used to justify more broadly any state regulation of behavior deemed irrational by the prevailing political culture.
Rob
Booklist for the Development of Catholic Legal Theory
As we start a new academic year, I invite my fellow bloggers and our readers to post their list of the 10-20 books that anyone interested in the development of Catholic Legal Theory should read. These books could be by Catholic, other religious, or secular authors. They could address theology, philosophy, science, or any other discipline. The list could even include fiction.
Thanks, Michael S.
Sunday, August 21, 2005
Roberts, College Education, and "Prejudices"
I've missed blogging the last few weeks because of family (parental) health issues and a Northern-California vacation; but I've enjoyed dipping into the others' discussions.
The Times has an interesting story on John Roberts' intellectual development,i.e. the crystallization of his conservatism at Harvard as an undergrad and law student in the mid and late 70s, when campus conservatives were viewed as political freaks and intellectual jokes. The quote that interested me is from Harvard lawprof (and leading critical-legal-studies theorist) Morton Horwitz, who didn't teach Roberts but recently read an undergraduate paper Roberts wrote on Daniel Webster's conservative philosophy.
It seemed apparent to [Horwitz, from reading the paper,] that Judge Roberts "was a conservative looking for a conservative ideology in American history."
"It was interesting to me how self-conscious it was in terms of his own discovery of where he stood," said Professor Horwitz, a self-described liberal. "My guess is he came to Harvard College with conservative prejudices and tried to educate those prejudices whenever he had the opportunity." Some students lose their prejudices, he said. "But others, especially the more intellectual types, actually educate their prejudices."
I think that Horwitz describes a real pair of phenomena that happen to students: those who just drop the the simplistic beliefs with which they came, and those who retain the basic beliefs but discover that there is more sophisticated foundation for them than they ever had known (and who perhaps develop a more sophisticated content to the beliefs as a result). I trust, though, that in speaking of "prejudices" he's not just referring to conservative beliefs, but to students' entering beliefs in general. Of course, in one sense having "prejudices" is not a bad thing and is inevitable -- our deepest beliefs about the world are underdetermined by pure reason and evidence (underdetermined not undetermined), and they reflect, in significant part, existential commitments that we make as individuals and in various communities. As a crit, you would think Horwitz would affirm that this is so for liberal beliefs as well as conservative beliefs. To that extent, "educating one's prejudices" could be something quite different -- and much more intellectually respectable -- than just finding confirmation for whatever silly thing one thinks. As to the silly things, we hope that students "lose their prejudices." But again, I'm sure that Horwitz allows that liberal as well as conservative beliefs can be silly, and that switching at college from a widespread middle-American conservatism to a widespread campus-based liberalism is often a case of switching prejudices (now in the bad sense of prejudices) rather than losing them.
Tom B.
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