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.

Tuesday, June 21, 2005

THE UNITED CHURCH OF CHRIST

By Michael Perry

After reading Rob's post on the UCC (here) and Mark's followup (here), I thought I had better do some investigating.  I suspected that the matter was more complicated than one might have inferred from the posts.  A friend of mine is a UCC minister, a scripture scholar, and the best homilist I have ever heard.  He writes:

I'm going to fax a resolution passed at our recent UCC Southern Conference annual meeting:  "A Substitute Resolution: Jesus is Lord."  This one passed instead of another put forth by our fundamentalist group.  The latter did, in fact, have the tone that this doctrine is "required" of all church members, and, I think, was clearly intended to stir up a fight (as was another, calling for us to affirm that marriage is only between one man and one woman).  I didn't go to the meeting, but our delegates and all of us are thrilled that our resolutions passed, and the others did not (the marriage one was tabled for further discussion, and a study committee is to be appointed).

Here is the text of the resolution that passed:

A SUBSTITUTE RESOLUTION:
JESUS IS LORD

The Southern Conference of the United Church of Christ joins its voice with Christians throughout the ages to declare that Jesus Christ is Lord.

We recognize that this confession is both radical and counter-cultural.

In declaring that Jesus Christ, and Jesus Christ alone, is Lord, we confess that country, flag and patriotism are not Lord.

In declaring that Jesus Christ, and Jesus Christ alone, is Lord, we confess that capitalism, consumerism and the American way of life are not Lord.

In declaring that Jesus Christ, and Jesus Christ alone, is Lord, we confess that neither democracy nor any other form of government is our Lord, and that our freedom is bestowed not by the force of arms but by the grace and mercy of our Lord Jesus Christ.

In declaring that Jesus Christ, and Jesus Christ alone, is Lord, we confess that our sole loyalty is to Jesus and to him only; any principality or power but Jesus who seeks to lay claim to lour loyalty is little more than a vain idol.

It is by the grace of this Lord that we are called.  Through his strength and mercy we will seek to follow where he leads.

_______________

Michael P.

The Prefential Option: A follow-up

By Rick Garnett

After noting that the "preferential option for the poor" may be, and is, invoked in good faith by both the "left" and the "right" in discussions of economic policy, Mark asks: 

[O]f what value is the concept of "the preferential option for the poor," if it is so elastic as to contain such widely disparate economic ideologies? What does the phrase add to how we make choices about economic policies and the legal infrastructure for supporting and expressing them if it can be used so promiscuously? What sense does it make to talk about Michael Novak and a Catholic socialist both being able to invoke the preferential option for the poor?

I want to say that, in my view, and notwithstanding its "elastic[ity]", it does make sense to talk about "Michael Novak and a Catholic socialist both being able to invoke the preferential option for the poor?"  The Preferential Option disciplines  -- at least it should! -- the economic-policy thinking of both the left and right:  It requires those on the "right" (like me, I suppose) to always ask, "do we support non-intervention, or resist government intervention, in this case because we believe that it will serve the common good, properly understood, and -- in particular -- will serve the special needs of the poor?  What reasons, grounded in those needs, support non-intervention in this case?"  On the other hand, I think that "Catholic socialist[s]" need discipline, too.  They need to be challenged:  "Is it really the case that this intervention or regulation actually serves the needs and promotes the authentic flourishing of the poor?  Or, are we simply assuming -- perhaps out of ideology, perhaps out of habit -- that command-and-control strategies and regulatory policies accomplish these ends, notwithstanding evidence to the contrary?"

Mark also says:

I tend toward a pragmatism on this question -- whatever works for the poor works. Sometimes the solution is market-based, sometimes it requires government intervention. I am troubled by the reflexive anti-statism of the arguments on the right; it is a categorical hostlity that cuts far too broadly. What distinguishes the Option is its radical insistence upon attention to the poor in policymaking. What mechanism does the market possess that will ensure such attention without the state? I'm not sure that we can simply assume that a rising tide will lift all boats.

I agree with much of this.  I would add, though -- and I think that this is consistent with CST -- that other values and principles will sometimes constrain a "whatever works"-style pragmatism, even in the service of the poor's interests.  (I am confident that Mark and I agree on this point.  That is, even a commitment to the Preferential Option would not justify all government -- or non-government -- actions allegedly designed to benefit the poor.  An arbitrary, or discriminatory, complete confiscation of some persons' private property, followed by redistribution, would not, in my view, necessary be justified by the Preferential Option).  As for whether the market possesses a "mechanism . . . that will ensure such attention without the state":  The claim would not be, I think, that the market necessarily "attends", in a conscious or purposeful way, specifically to the interests of the poor, but rather that those interests are more likely to be advanced, generally speaking, in the conditions of a reasonably free and fair market.   Mark is right that we cannot "assume" that a rising tide lifts all boats, but we can observe that, in fact, it often does, and also observe that economic stagnation or stasis tends to fall heavily on the poor. 

I'm probably more "reflexive[ly] anti-statis[t]" than Mark is, but I think we agree that the public authority has the right and duty (subject to the rule of law, structural and other constitutional constraints, etc.) to craft policies consistent with the Preferential Option.  In my view, though, such "policies" will often (not always, to be sure) involve supporting -- and, perhaps, getting out of the way of -- the market.  Mark and I agree, though -- as would Michael Novak -- that the normative principle doing the work in designing and implementing policy is not so much the "market" itself, but rather the Preferential Option.

Rick

Those Dreaded "Religious Views"

By Rob Vischer

At the end of the article discussing Dean Rudenstine's speech, another law school dean adds his own incredible take on those religious zealots out there:

Dean Lawrence Raful of Long Island's Touro Law Center, affiliated with an Orthodox Jewish undergraduate program, doubted that strong religious belief promotes valid debate.

"What fundamentalist people don't understand is that if they take a stance based on religion, they're promoting a religious view," said Mr. Raful. "God created you to have an open mind. God gave us free will to understand science and belief at the same time, and He gave us some idea of how to live with the Ten Commandments, and then I think He said something to us like, 'Good luck.'"

I'm not even sure where to begin with this passage.  I'm fairly certain that most "fundamentalist people" understand that their religion-based stances amount to "religious views."  So what?  Does Dean Raful assume that, once he's established their status as "religious views," they are disqualified from expression in the public / legal sphere?  (See, e.g., Perry, et al.)  And how exactly can he discount the public validity of the religious views espoused by those "fundamentalist people" by offering his own explicitly religious view?  (i.e., that God just told us "Good luck" and is not actively involved in history)

As for the broader point raised by both Dean Raful and Dean Rudenstine -- that faith threatens legal discourse -- Steve Smith's "Hollow Men" thesis speaks to this better than I could.  My own experience is that faith gives lawyers and law students a foundation for their belief in transcendent principles.  I'm not saying that faith is required to create such a foundation, but I have found the foundation sorely lacking as I explore topics like ethics in the classroom.  It seems a bit strange to penalize those who enter into legal discourse actually having an articulable reason for their belief in the principles on which the system depends.

Rob

Deeper than Rudenstine

By Amy Uelmen

There may be interesting connections between the recent evolution-creationism debates (and posts) and Dean Rudenstine’s definition of faith as “a willingness to accept belief in things for which we have no evidence, or which runs counter to evidence we have." The source of the tension in both cases is the presupposition that one language (either that of “science” - or that of faith) is sufficient to describe human life or experience. I am recently back from a terrific conference on the Science-Faith Dialogue put together by Metanexus. (I have no hidden science background! As part of their “Global University” track I was presenting the Focolare’s two-week interdisciplinary international summer school for college and graduates students to explore the connections between faith and academic life). The tribute to Teilhard de Chardin included a terrific presentation by John Haught (Georgetown). In his recent book, Deeper than Darwin (2003), he explores how both science and religion can be bearers of “truth,” and describes science and religion as different but compatible “reading levels.” “Even though Darwinism is illuminating, it by no means tells us everything we need to know about life, even in principle.” The developing science-faith dialogue, and the description of different “reading levels” may have much to teach us as we grapple with similar arguments, and with “red state-blue state” tensions in the legal education forum.

Monday, June 20, 2005

How Elastic Is the Preferential Option for the Poor?

By Rick Garnett

I appreciated Rick's pointer to the "Against the Grain's" post on the preferential option for the poor. It returns us to the argument about whether the Option (or CST in general) pushes us to the left or right on matters of economic policy -- or even our understanding of equality. The post makes the argument that anti-statist, pro-market types (ie, Michael Novak, Fr Sirico, the Acton Institute) are not AGAINST the Option, but that they believe the interests of the poor are better served by the economic policies they favor, than by pro-regulatory, market-constraining, welfarist, redistributionist policies, and, to boot, that those statist policies tend to be violative of human liberty and hence human dignity. In other words, they are merely presenting an argument over means, not ends.  Well, if that is true, of what value is the concept of "the preferential option for the poor," if it is so elastic as to contain such widely disparate economic ideologies? What does the phrase add to how we make choices about economic policies and the legal infrastructure for supporting and expressing them if it can be used so promiscuously? What sense does it make to talk about Michael Novak and a Catholic socialist both being able to invoke the preferential option for the poor?   I tend toward a pragmatism on this question -- whatever works for the poor works. Sometimes the solution is market-based, sometimes it requires government intervention. I am troubled by the reflexive anti-statism of the arguments on the right; it is a categorical hostlity that cuts far too broadly. What distinguishes the Option is its radical insistence upon attention to the poor in policymaking. What mechanism does the market possess that will ensure such attention without the state? I'm not sure that we can simply assume that a rising tide will lift all boats. Wealth creation can be a tsunami or a whirlpool in which many boats will sink.

--Mark

Mario Cuomo Rides Again

By Rob Vischer

Perhaps inspired by Dean Rudenstine's "keep faith out of the law schools" lecture, Mario Cuomo has jumped into the stem cell debate with his "keep faith out of the law" solution.  It's a fairly simple plan:

the president should start by following the successful pattern established in other areas of dealing with the clash of religious and political questions, including the law concerning abortion. The right of true believers to live by their own religious beliefs will be guaranteed: no one will be compelled to use stem cell research or its products, just as no one will ever be compelled to have an abortion.

It's nice to be reassured that the abortion laws have been such a success.  More broadly, it seems that these culture wars will soon be a thing of the past if we can simply trot the esteemed Governor out as new moral quandaries arise.  See, e.g., Cuomo on cloning ("True believers will never be compelled to be cloned."); Cuomo on euthanasia ("True believers will never be compelled to end someone's life."). 

Finally, a blueprint we can all get behind!

Rob

Rudenstine Revisited

By Rick Garnett

I agree with Rick's observation that there are more fundamental problems with Dean Rudenstine's argument than his failure to make room for us progressive Catholic types. The first problem is one of crude epistemology -- the kind of bald antithesis between faith and reason that fails to take into account a millenium or so of exploration of the relationship between fides et ratio. The second is apparent unfamiliarity with the complex and deeply nuanced debates over the role of religion and faith-based discourse in a liberal democracy that Mike Perry and others have advanced so constructively. The third is the failure to recognize that limitations on reasoned debate in higher education and legal education can come just as easily from the enshrining of secular shibboleths as non-debatable absolutes (as Rick suggests). The fourth is related to what I mentioned in my first post -- a truly simplistic misunderstanding of what faith means. And I do agree with Rick's last point. There would be no place in Dean Rudenstine's law school universe for what we are trying to do here -- understand the implications of Catholic faith for our understanding of the law. That pursuit neither denigrates reason nor ignores "evidence;" it engages with different traditions, and does not seek to silence them; and it insists upon our obligation to pursue truth in the face of the value skepticism and neutrality that has become the official ideology of the legal profession and academy. I hope that Brian Leiter is right in asserting that I have mischaracterized Dean Rudenstine's position, but I have my doubts. His rhetoric is at least agressive, and should not go unchallenged.

--Mark

Sunday, June 19, 2005

Faith, law schools, and Dean Rudenstine

By Rick Garnett

Thanks to Mark, Michael, and Brian Leiter, for alerting us to Dean David Rudenstine's remarks (Rudenstine is the dean of Cardozo Law School) about "faith" and legal education.  Apparently, Dean Rudenstine said to a group of pre-law advisors, among other things:

"Faith challenges the underpinnings of legal education. Faith is a willingness to accept belief in things for which we have no evidence, or which runs counter to evidence we have."

Dean Rudenstine's remarks are illuminating, and frustrating, in many ways and for many reasons.  Mark noted that they are "unworthy of the dean of a religiously-affiliated law school."  I cannot help thinking that we should expect better from the dean of any law school, or from anyone tasked with informing future law students about the nature of the legal enterprise.

Put aside, for now, the fact that Dean Rudenstine seems to be working from the tired playbook according to which "faith" makes people "intolerant", is "divisive", or is at war with reason and "evidence."  (I do not share Professor Leiter's more charitable view of Dean Rudenstine's remarks).  Mark does a good job responding to these canards.  (My only quibble with Mark's post has to do with his own unhelpful -- and therefore uncharacteristic -- digs at "the Republican/Religious Right rapprochment" and the "the Bush/DeLay/Frist type of 'Christian nationalism'".  If Dean Rubenstine's comments are misguided -- and they are -- it is not simply because he failed to say nice things about tolerant Catholic progressives.)

According to the original news story, "Mr. Rudenstine said that America's law schools have a social responsibility, especially at a time of religious fundamentalism, to foster reasoned debate over the facts and science of such controversial matters. To shirk this role, he suggested, would be to leave the way clear for faith-based organizations to impose 'divisive' views."  Again, brushing past the tedious bogeyman of "divisive" faith-based organizations, I would think that law schools do indeed have a "social responsibility" to "foster reasoned debate" . . . but not just in the face of "religious fundamentalism."  Anyone remotely familiar with legal education at top schools knows that "reasoned debate" is curtailed on a wide range of subjects, and not by "religious fundamentalis[ts]."  A similar point could be made with respect to the Dean's statement that "Faith does not tolerate opposing views, does not acknowledge inconvenient facts. Law schools stand in fundamental opposition to this."  Yes, law schools should "stand in fundamental opposition to this," but do they?

Then there is the Dean's insistence that "[f]aith challenges the underpinnings of legal education," because "[f]aith is a willingness to accept belief in things for which we have no evidence, or which runs counter to evidence we have."  As Mark and Michael have already observed, this is not really what (or, not all that) "faith" is.  But is the Dean's claim really that one of the "underpinnings" of legal education is that one may believe in or accept only those "things for which we have . . . evidence"?  Or, more precisely, is his claim that we may not, as legal educators and lawyers, believe in things "for which we have no evidence, or which runs counter to evidence we have"?  As Steve Smith has argued, well and in several places, lawyers are hardly the scientists, or empiricists, that Rudenstine seems to imagine.  Lawyers make claims, craft arguments, and tell stories; they present evidence, yes, but they also stand on principles, norms, values, and morals for which -- perhaps -- they lack evidence.  Who is to say that our profession's devotion to the "rule of law" does not reflect a "faith" of the kind Dean Rudenstine seems to disparage?

Don't get me wrong:  Facts are (often) facts, and they should not be avoided, just because they are inconvenient and unsettling.  But "facts" are also complicated, and they come wrapped in context.  So, it strikes me that "faith" is hardly at war with the legal enterprise; instead, it can provide a stance, platform, or perspective from which that enterprise can be better carried out. 

I'd like to hear more from my MOJ colleagues about their views on this matter.  Dean Rudenstine's remarks, it seems to me, are a fundamental challenge to what we are about on this blog.

Rick

Update:  Here are some thoughts from Kaimi Wenger, at "Prawfsblawg", who voices concern that "Dean Rudenstine's remarks . . . are toxic in their overbreadth.  They are a set of sweeping statements of anti-religious bias, seemingly based on bigoted ideas about how religious faith operates in all people."

Here is Howard Friedman's take (at "Religion Clause"):  "Rudenstine commits a . . . fundamental error.  He assumes that religious faith is about things for which the accumulation of evidence is possible. Faith should be about fundamental values, not about historical facts or scientific theories."

The Preferential Option for the Poor

By Rick Garnett

Here, at the "Against the Grain" blog, is a detailed discussion of the various interpretations given by Catholics and others to the "preferential option for the poor."

Rick

Paul Johnson on Europe

By Rick Garnett

Paul Johnson's essay, from Opinionjournal, is worth a read.  Here is the conclusion (which follows a reminder that many of the original architects of the EU were believing Catholics):

The EU has no intellectual content. Great writers have no role to play in it, even indirectly, nor have great thinkers or scientists. It is not the Europe of Aquinas, Luther or Calvin--or the Europe of Galileo, Newton and Einstein. Half a century ago, Robert Schumann, first of the founding fathers, often referred in his speeches to Kant and St. Thomas More, Dante and the poet Paul Valery. To him--he said explicitly--building Europe was a "great moral issue." He spoke of "the Soul of Europe." Such thoughts and expressions strike no chord in Brussels today.

In short, the EU is not a living body, with a mind and spirit and animating soul. And unless it finds such nonmaterial but essential dimensions, it will soon be a dead body, the symbolic corpse of a dying continent.

Rick

Previous Articles More Articles

Recent Posts

Categories

Monthly Archive