I am sorry that my being away from Rome whilst I attend language instruction has prevented me from contributing to the ongoing discussion about Catholic judges in a more expeditious manner. I would like to take this opportunity to address some views that may have suggested that the role of judges may have been omitted from recent Church texts regarding the judicial role in democracy and public life. I believe that the CDF’s Doctrinal Note on the Participation of Catholics in Political Life does provide insight on the role of all Catholic citizens regardless of their role in political processes.
While the note does not specifically mention judges by name, it does address all members of a democratic society and their respective roles in civil affairs. This inclusive statement would apply to judges in their dual capacity of citizens and government officials. The text of the CDF does not restrict its concerns to legislators only. Without mentioning particulars, the note states that there are "other ways" besides being a legislator in which the members of society contribute to the development of political solutions and legislative choices that will benefit the common good. The note makes reference to Christifideles Laici and its exhortation that the life of a democratic society cannot be productive without the active and responsible involvement of all its members "albeit in a diversity and complementarity of forms, levels, tasks, and responsibilities." Judges surely have a role in bringing their particular competence and expertise when they embrace this charge. In accordance with the Pastoral Constitution of the Second Vatican Council, the faithful which includes Catholic judges have a duty not to relinquish their important role in promoting the common good. The CDF note specified that the common good includes addressing public order and peace, freedom and equality, respect for human life and the environment, justice and solidarity. Again, judges, including those who are Catholic, have a definite role in this enterprise.
While the note discusses democratic societies, it does not mention any particular political system. But as Americans, we must not forget the role that judges have on the work of the law making process at the national, state, and local levels. A judge can declare a statute or ordinance unconstitutional. A judge can provide a juridical definition or interpretation to a public legal text promulgated by the legislature or other body that serves legislative functions. There is no doubt that the role of the American and Catholic judge is addressed in this text. When the note speaks of "cultural relativism" that sanctions "the decadence and disintegration of reason and the principles of the natural moral law," judges cannot be considered excused from this instruction. In our American legal system, judges do have a role in the making of law through their role in judicial review and legal interpretation. If these obligations mentioned in the note belong to the legislator and the executive, they are also those of the judge.
If a Catholic judge, legislator, or executive cannot rely on his or her understanding of this natural moral law and what constitutes the human good, then whose understanding is being relied upon when public officials make decisions that are or appear to be within their competence? This is the concern I have with the claims for "tolerance" and "pluralism" today about how laws are to be made and interpreted. Our American society and its legal institutions have been gravely affected by these claims that camouflage decision making (be it legislative, executive, or judicial) with some particular interest group’s perspective but in the name of "pluralism" or "tolerance." When a legislature enacts a law regulating abortion that is challenged in the courts by NARAL, the ACLU, or the Center for Reproductive Rights, whose view prevails? Is it the view that protects the interests of all (the common good) or is the view that reflects only the interests of some (and therefore not the common good)? Advocates of pluralism and tolerance often make claims that the views of some cannot be imposed on the views of all, but this is precisely what happens when these special interests defeat the legislature that has regulated abortion as one example. More often than not in recent times it is the view of special interests that is given deference and the views of the rest are subject to forfeit.
As citizens and as officials, Catholic judges like their fellow citizens and disciples need to assess their role in public life "so as to be sure that it is marked by a coherent responsibility for temporal reality." Crucial to this vocation is a proper understanding of the nature of the human person and the dignity that is inalienably due to each member of the human family. After all, that is what authentic human rights is about. And again, judges, including those who are Catholic, have a role and obligations in this pursuit. To do otherwise negates the person’s genuine freedom to both country and Church.
To provide grounding for what all citizens who consider themselves Catholic should do in public life, the note provides instruction:
When political activity comes up against moral principles that do not admit of exception, compromise or derogation, the Catholic commitment becomes more evident and laden with responsibility. In the face of fundamental and inalienable ethical demands, Christians must recognize that what is at stake is the essence of the moral law, which concerns the integral good of the human person. This is the case with laws concerning abortion and euthanasia (not to be confused with the decision to forgo extraordinary treatments, which is morally legitimate). Such laws must defend the basic right to life from conception to natural death. In the same way, it is necessary to recall the duty to respect and protect the rights of the human embryo. Analogously, the family needs to be safeguarded and promoted, based on monogamous marriage between a man and a woman, and protected in its unity and stability in the face of modern laws on divorce: in no way can other forms of cohabitation be placed on the same level as marriage, nor can they receive legal recognition as such. The same is true for the freedom of parents regarding the education of their children; it is an inalienable right recognized also by the Universal Declaration on Human Rights. In the same way, one must consider society’s protection of minors and freedom from modern forms of slavery (drug abuse and prostitution, for example). In addition, there is the right to religious freedom and the development of an economy that is at the service of the human person and of the common good, with respect for social justice, the principles of human solidarity and subsidiarity, according to which "the rights of all individuals, families, and organizations and their practical implementation must be acknowledged." Finally, the question of peace must be mentioned. Certain pacifistic and ideological visions tend at times to secularize the value of peace, while, in other cases, there is the problem of summary ethical judgments which forget the complexity of the issues involved. Peace is always "the work of justice and the effect of charity." It demands the absolute and radical rejection of violence and terrorism and requires a constant and vigilant commitment on the part of all political leaders.
Finally, for those who might argue or suggest that there may be a conflict with the Establishment Clause, the note is sympathetic. The note acknowledges the difference between the spheres of politics and civil affairs and that of religion and the Church. But the note also hastens to add correctly that morality infuses both spheres. But for those who might argue otherwise, they ought to reflect on the civil laws that protect members of society from those who commit or attempt crimes, for example. Why do we have these laws? We have them because they are proper instruments of civil governance. While they provide moral direction, they also promote a society in which morality is at the root of how we ought to conduct our affairs with one another.
All Catholics have the right and duty to seek the truth about human existence and to promote and to defend this truth by using the appropriate political and legal mechanisms that we have developed. This is at the core of justice which the law presumably exists to protect and maintain. Otherwise, there will always be someone weaker who is controlled or oppressed by someone who is stronger, and this the Church teaches is wrong even though some advocates for pluralism, diversity, and tolerance make different but erroneous claims.
No one who claims to be a Catholic is excused. To argue that judges fall through a crack in the Church’s teachings would be a flawed position to take and to maintain. The CDF’s note and what the Church teaches it members do not command particular outcomes. They do indicate how a Catholic is to be well informed and exercise sound and right reason as he or she engages his or her proper role in political life. These are teachings compatible with American democracy, and they apply to the role of the Catholic judge and every other Catholic citizen. RJA sj
Friday, August 5, 2005
Paul Krugman's editorial today illustrates what strikes me as a regrettable trend, i.e, the tendency of those who oppose the teaching (in any context) of "Intelligent Design" in schools to charge smugly that those who are willing to entertain the possibility of presenting, in some fashion, to students the idea that the physical universe as it exists today was -- evolutionary change notwithstanding -- in some meaningful sense "designed" are just, well, stupid.
To be clear: I believe strongly that "science" classes -- in both public and private schools -- should teach "science" and only "science." Reason and science are capable of identifying facts, testing hypotheses, increasing knowledge, and discarding error; and nothing in Christianity can or should lead any particular Christian to reject facts established by science as contrary to revealed truth. What's more, I am happy to concede that an argument that "God planned and / or directed the evolution that clearly has taken place over millions of years" is not "science."
Krugman writes: "The important thing to remember is that like supply-side economics or global-warming skepticism, intelligent design doesn't have to attract significant support from actual researchers to be effective. All it has to do is create confusion, to make it seem as if there really is a controversy about the validity of evolutionary theory. That, together with the political muscle of the religious right, may be enough to start a process that ends with banishing Darwin from the classroom." Um, not likely. It might well be that there are biblical fundamentalists who want to "banish[] Darwin from the classroom." They should, and certainly will, fail in this effort. But it seems to me that the vast majority of those who are, at least in part, sympathetic to the "Intelligent Design" movement are not biblical fundamentalists. I suspect that their support does not reflect a considered judgment that "evolution is just a theory" or that "God designed the universe" is "science", but rather a concern that "evolution" sometimes serves not as the fundamental (and fundamentally sound) account of the universe's history and development, but as a kind of religio-philosophical creed. That is, I suspect that most who harbor some sympathy with the Intelligent Design movement have no interest in introducing religion into science classes, but simply in making sure that science is not made into a religion.
Would Krugman object -- would anyone object -- to a science teacher saying, "of course, as scientists we are utterly unable responsibly to say anything about the reasons why there is something rather than nothing; we know and can show that our physical universe has evolved over millions of years, but we cannot show -- and would not, as scientists, presume to try -- that God does not exist or sustain, in some fundamental way, the existence of all that is."
Rick
Thanks to Richard for alerting us to Kevin Lee's new blog, "Christian Legal Theory." Right out the box, Kevin is providing some very thoughtful and helpful discussion of our favorite topic here at MOJ, i.e., Christian Moral Anthropology and the law. Here is a taste:
This means, of course, that Catholic thought and life cannot be wholly reduced to philosophical propositions. In particular, the moral life of Catholics is structured by a robust conception of the human person. The Christian anthropology is irreducible—it cannot be expressed in secular terms. This dimension of Fides et Ratio should be read in light of recent hermeneutical thought, which has argued that religious propositions cannot be understood in isolation. For example, the idea of the Eucharist relies to some degree on the idea of the Trinity. It is not possible to grasp the meaning of the sacrament that is symbolized by the word “Eucharist” without grasping what is meant by “Trinity.” And, “Trinity” evokes a whole host of other symbols. A rose will have a special significance to a Carmelite, and to a Zen Buddhist, a cup of tea can be suffuse in meanings difficult to understand without years of study. These complexes of associations and meanings are typically referred to as “webs of signification” by which a worldview is communicated. A believing Christian interprets the world through a distinct set of significations which are web-like in their interrelation and world-embracing in their scope. . . .
There are significant implications of these passages for thinking about the nature of Catholic legal education and Catholic legal scholarship.
Kevin also touches, in this post, on a matter that we've addressed several times here, namely, the nature, characteristics, and purpose of a distinctively Catholic law school. Commenting on, among other things, John Breen's recent article on Jesuit law schools, Lee writes:
Breen is suggesting that sensitizing the student to the moral relevance of the lawyer’s work is essential to the task of Catholic legal education. But, while this is necessary, it is not the sufficient feature to distinguish Catholic legal education. Breen argues that such courses in legal theory cannot be the centerpiece of a properly Christian education unless the legal theory presented engages the Catholic intellectual tradition. . . . In short, Breen argues that legal education cannot be specifically Catholic without reference to the essential teachings of the Church regarding the nature of the person.
A question that might be put to Breen, however, is whether it is possible to set out the essence of the Church’s teaching on the person without using a specifically Catholic theological vocabulary. Aren’t rights and freedoms things that secular thinkers endorse too? Why not just teach these ideas in “non-offensive” secular language? This sort of apologetic approach has many supporters. . . .
It could be argued that a Christian account of the world and of the moral life must be rooted in theology that resists correlation and translation. While his argument is quite complex, it is worth noting here that Fides et Ratio gives some guidance about the limits that one can hope to achieve in the translation or correlation of Catholic thought. John Paul suggests that the Catholic mode of signification contains certain features that are irreducible in the sense that the meanings of these doctrines elude other modes of signification. The irreducible essence of the faith, he contends, requires understanding the meaning of human beings as creatures created in God’s image, yet fallen and redeemed in Christ. Studies on justice and human dignity take on unique significance from within this irreducible doctrine of the Catholic faith than is possible from secular rights theories and moral anthropologies. . . .
So, while I believe Breen is quite correct in insisting on the need among law students for a sustained study of justice, and that this study must include some conception of the human person, I think that for a legal theory to be recognizably Catholic, it must take as properly basic the irreducible claims of Revelation that John Paul points out in Chapter Seven of Fides et Ratio. And, turning to legal education as such, one might add a thesis to the first point of doctrine that John Paul identifies: that Catholic legal education must come to terms with the claim, repeated often in Scripture and among the Fathers of the early Church, that Jesus Christ is the Lord of all nations; that He is the truth which all nations desire. Working out the meaning of these claims is the essence of understanding the theological context of Catholic legal education, and without such understanding, the identity of the Catholic law school will remain forever adrift.
Please note that I am not saying that there is no room in Catholic institutions of higher learning for the study and teaching of other views. I am simply saying that they are OTHER, in the sense of not being essential to the Catholic faith. The problem is one of definition. If Catholicity has a meaning, then it must be defined by adherence to certain beliefs and practices. Failing to keep to these definitional features moves one beyond the boundaries of Catholicism. Just as a lion is distinguished from a tiger by its thick mane and lack of stripes, so too is a Catholic legal theorist to be distinguished from other theorists by a committed belief in the giftedness of creation, the intrinsic dignity of the human rooted in the imagio dei, and the ability of the human mind to know the meaning of human existence. Theories that are not derived from these claims are simply so different from Catholic teaching as to be unrecognizable to the Christian faith, no matter what other Christian features might be evident. Surely the grace and clarity with which the late pope expressed these insights will contribute to his lasting greatness.
What do people think? Fr. Araujo? The St. Thomas crew? The Dean?
Rick
Over at First Things, which is no liberal rag, but rather the leading Catholic-leaning neoconservative-ish monthly journal of opinion and commentary, to which all thinking people should subscribe, but will be of special interest to center-right Christians, Joseph Bottum has a very provocative essay against the death penalty. I'm finding it hard to summarize or even to find a single money quote; the analysis is rich and complex, covering a lot of ground in little space. Perhaps it would be best simply to highlight the key question Bottum is seeking to answer:
Under any Christian understanding of political theory, where does the legal system of a modern democracy gain authority to act on this high level?
It's not an approach that had occurred to me, but that makes it today's must read. Please do go read the whole thing. Also, you can subscribe to First Things here. Do it today.
Thursday, August 4, 2005
Readers of this blog should take a look at a great new blog on Christian Legal Theory. The blog's author is Kevin Lee, who is one of my colleagues here at Ave Maria School of Law. The blog "reports and comments on professional scholarship in political theology as it relates to legal theory. It is broadly ecumenical, open to anyone who takes Christ to be the Light of the nations." The first few posts provide a flavor of what to expect. Kevin, who emphasizes the need for Christian legal theory to have a strong theological grounding, has much to offer on issues central to the Mirror of Justice enterprise.
Richard
Wednesday, August 3, 2005
Regarding my post, from a few days ago, about this essay by Notre Dame's Professor Gary Belovsky, "Darwinism and Catholicism Should Be Compatible," a friend, MOJ reader, and Ph.D. candidate in Theology, Harold Ernst, writes:
I am afraid I do not share your sense that [Belovsky's] essay is helpful -- indeed, I think it only exacerbates the apparent rift between the "scientific" and "theological" perspectives on the matter. Schonborn and Belovsky (and various proxies) are really talking past one another, such that each iteration more inflames indignation than engenders understanding. It seems to me that what is called for on both sides is somewhat greater intellectual humility, and an awareness of the limits one's discipline and proper area of competence.
As a theologian, I would simply suggest that the Church should have no particular view, much less objection, to legitimate evolutionary science (other than to support its research, as in all fields of knowledge pursued according to their proper methods, as a salutary expression of human reason in search of truth). But of course the Church must issue a caution when, either overtly or in the popular imagination, scientific theories are taken as demonstrating theological conclusions that can in no way be established by scientific methods (e.g., that there is no transcendent Creator who remains immanently active in the created order). Distinguishing legitimate evolutionary science from the metaphysical assertions entailed by a philosophy of reductionistic materialism is therefore strictly necessary.
The rub is that scientists and theologians are rarely speaking the same language when referring, for example, to the "mechanics" of micro-evolution. Belovsky protests that Cardinal Schönborn would have us deny what we can observe," while Schonborn is concerned that scientists (perhaps even inadvertently) are *asserting what they have not, and cannot, observe.* That is, that what appears as "random" and "chance" within the physical realm in which biology properly functions, does not require that theology abandon as obscurantist the "wish to see God intimately involved in each and every event." In a theology of creation where God is affirmed as the universal causa causarum, the Creator is everywhere operative in all that exists, insofar as it exists. But the transcendence of this Creator is such that divine immanence throughout the created order does not preclude the real proper causality of creatures, and so what really is a chance occurrence within the physical realm can nevertheless be part of the divine plan for creation (what is at stake here, of course, is the doctrine of divine providence).
Thus the title of Belovsky's essay is spot on, but much of his reasoning is misdirected or worse. In addition to the failure to distinguish between physical and metaphysical claims, you are quite right to question his description of the distinction between science and religion. Perhaps understandably, given the subtlety of these questions and the unfortunate history of their consideration, Belovsky appears to want to "privatize" religion as much as possible so that there is no risk of it interfering with science. Thus he suggests that faith is at least a-rational (if not irrational), that no knowledge of God is available from the material realm (a view rejected at Vatican
I, precisely against fideism), and that religion should restrict itself to questions science cannot answer (like "how did the 'big-bang' creation of the universe get its start?").
But the Church decisively rejects this radical separation. Theology, it is sometimes said, is the result of a confidence in the compatibility of faith and reason. Faith is itself a kind of knowledge, and while it reaches to what is above reason it is never against reason (suprarational, not irrational). And faith assertions make claims about reality as such, how things *really are* and not just how we "believe" them to be. Thus theology is limited merely to considerations of how the universe "got started," as in Deism, but encompasses a properly theological account even of evolutionary development, drawing upon the legitimate findings of biological science.
In short, I worry that the Belovsky essay only confuses these question still more, because it reflects the poor state of catechetical training even among otherwise well-educated Catholics. And that is the aspect of this debate that I am concerned with, quite apart from its possible part in the "culture wars" and all that.
Rick
