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, April 25, 2005

Conscience and Politics: Bush vs. Cuomo

Notre Dame philosophy prof John O'Callaghan offers the following response to my earlier post on the role of conscience in the politics of Jeb Bush and Mario Cuomo:

I thought your question Saturday, about whether there is any difference between Gov. Cuomo and Gov. Bush on the responsibilities of Catholic politicians given the deliberations of their consciences, very interesting.  Granted the wisdom of avoiding judging the inner depths of anyone’s conscience, it seems that we can at least take what they say about their consciences as food for speculative discussion about the nature of conscience, and that is how I will act here.  I will treat them as types rather than actual individuals.  And for clarity’s sake let us suppose that Gov. Cuomo’s position was one of privately opposing abortion according to Catholic teaching as an intrinsically evil act, but publicly supporting it.  In other words, suppose his public policy stance was not one of mere toleration of an evil that he was working to eliminate, but actual support in the public forum.  (As time has lapsed and memory fades, I am a little wary of attributing that stark a position to the actual person, as he was very talented at “nuancing the problematic.”  On the other hand, I don’t recall at all that his position was one of simply tolerating a policy he hoped in the future to eliminate.  But here I’m just constructing ideal cases for the sake of the question.)  One of your questions appears to be whether there is any real difference in the exercise of Gov. Cuomo’s conscience and Gov. Bush’s as Catholic politicians in fulfilling their duties as governors.

I think the answer to that question is yes.  Gov. Cuomo struggled in his conscience over policies promoting intrinsically evil acts.  Gov. Bush struggles in his conscience over a policy that does not promote an intrinsically evil act, however much it is an act that the Church teaches ought to be done in very rare circumstances, and however much it may be badly pursued in particular circumstances.  The deliberations of their respective consciences are different, because the material content of those deliberations are different.  We often have a temptation to separate the formal features of our practical reasoning from the material, akin to the way in speculative argument we may talk about the logical structure of an argument, modus ponens for example, as distinct from the content of that argument.  In that sense we might say that the biologist and the chemist made the same argument, though one was talking about cows and the other numbers.  With regard to conscience, abstracting away what the consciences are actually deliberating over, we might then be inclined to say that with respect to their consciences there is really not much difference between the two. 

The charge of hypocrisy, for example, is the expression of our moral disapprobation toward purely formal features of our practical reasoning and action.  You can call anybody a hypocrite because of the way his actions contradict his words.  Doesn’t matter at all what the material contents of his words or actions are.  A hypocritical shopkeeper versus a hypocritical murderer versus a hypocritical politician—they are all hypocrites.  That’s probably why we find it so easy to condemn others for being hypocrites formally, but very difficult to do so for being any number of other things materially.  We tend toward a soft relativism of material moral facts, and a hard moral absolutism about the formal features of practical reasoning—“who am I to judge?” versus “he’s such a hypocrite!”.  Pope Benedict XVI analyzes a similar kind of separation of “free will” from the “truth” here.

In reality, though, we never actually argue practically in a purely formal way, as our arguments always have material content.  Whom would we rather meet, a hypocritical shopkeeper, politician, or murderer?

So here is an analogy.  Is there any significant difference in the struggles of conscience of someone promoting a policy of torture and someone pursuing a policy of removing children from their parent’s home?  I think the answer to that is yes. Surely taking a child away from its parents is an act that can be good, and may be done, but presumably only in very rare cases.  We want the person promoting the latter to struggle with an actual decision in particular circumstances as to whether this is the best thing to do here and now.  Such a struggle would seem to be a sign of a good conscience, even if he is not doing a good job of it here and now; there is reason for hope.    One finds oneself struggling in one’s conscience with decisions about taking children away from their parents as one exercising one’s responsibility for promoting the common good in a certain governmental role.  The person may feel guilt over making a bad decision, though his actually having to make a decision at all here is not reason for feeling guilt ipso facto.  In the case of the former, torture, we don’t want someone to be struggling with such a decision at all; that someone is engaged in such a struggle of conscience is not a good sign, nor does it give reason for hope.    Is one struggling with one’s conscience in promoting torture exercising one’s responsibility for promoting the common good?  No.  They’ve lost sight of it.  It is ipso facto a reason for feelings of guilt.  The actual difference between the two is a difference between the exercise of prudence, even if badly carried out, and the exercise of what I called, following Aristotle, “cleverness” here.

So it strikes me that the difference in the material positions pursued makes a significant difference to what can be concluded from Gov. Bush’s remarks.  Gov. Cuomo’s remarks provided evidence for attributing to him the view that good governance by a Catholic politician may involve promoting in public polices that facilitate acts one believes are intrinsically evil, like torture, slavery, and abortion.  Gov. Bush’s remarks provide no such evidence for attributing that view to him.

At the end of the first book of the Republic, Plato considers a band of thieves, and the fact that they seem to need to act justly toward one another if they are to be successful in the injustice of their thievery directed at the larger community they live within—honor among thieves and all that.  As the Republic winds on, however, we come to understand that such justice among thieves may have the appearance of justice, but it is no justice at all. 

UPDATE: William & Mary law prof Eric Chason echoes these sentiments by drawing my attention to Pope Benedict XVI's earlier writing:

Reading your post about Cuomo and Bush (along with the thoughtful follow ups)brought to mind the confidential "Kerry letter" that was attributed to then Cardinal Ratzinger last summer. In particular,

"3. Not all moral issues have the same moral weight as abortion and euthanasia. For example, if a Catholic were to be at odds with the Holy Father on the application of capital punishment or on the decision to wage war, he would not for that reason be considered unworthy to present himself to receive Holy Communion. While the Church exhorts civil authorities to seek peace, not war, and to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible to take up arms to repel an aggressor or to have recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."

A Question about the Role of Law Schools in Great Catholic Universities

A few days ago, I had a very enjoyable conversation with a Notre Dame colleague -- who does not teach in our law school -- about the place of a law school in a university, particularly in a Catholic university that aspires to be "great."  Many of us here at MOJ have thought, and written, about what it means, and why it might matter, to be a "Catholic law school."  I'd like to invite reactions on a slightly different question -- one that necessarily points toward issues sounding in "Catholic legal theory" -- namely, what is the role of a law school in a Catholic university?  Is there something about contemporary culture and institutions -- in America, particularly -- that suggests that any university hoping to be, work, and engage the world in a way that is distinctively Catholic must place special importance on the mission and flourishing of a law school?  Any thoughts?

Rick

Salt of the Earth

I took Peter Steinfel’s advice – to “get a clearer sense” of Pope Benedict XVI’s “vision of the world” and sense of his priorities, I spent the weekend reading Peter Sewald’s book-length interview with Cardinal Ratzinger, The Salt of the Earth: The Church at the End of the Millennium (Ignatius Press 1997).  I was deeply impressed by the breadth of his sweeping vision, and—I would venture to say—his mystic depth.  Below are a few of my favorites—but I’d encourage anyone who wants a window into what’s ahead to read the book.  Topics include his personal biography and reflections on the “canon of criticism,” and current questions for the new millennium (institutional renewal, dialogue with other religions, dialogue with the world, etc.).  Because the questions are posed by a secular journalist, the resulting text is frank, open, spontaneous, and very readable.

In response to the question, how many ways are there to God: “As many as there are people.  For even within the same faith each man’s way is an entirely personal one.  We have Christ’s word: I am the way.  In that respect there is ultimately one way, and everyone who is one the way to God is therefore in some sense also on the way of Jesus Christ.  But this does not mean that all ways are identical in terms of consciousness and will, but, on the contrary, one way is so big that it becomes personal for each man.” (32)

In response to a question about the public image of the Church as a severe and ossified tribunal: “ . . . one must also ask how the Church herself, instead of simply scolding the media, can properly adapt her public presentation.  In the inner life of faith, where the real core of the faith is proclaimed, individual elements can be correctly related to one another, and in that case such prohibitions could have their proper place in a much larger and positive whole. . . . The Church has to consider how to establish the right proportion between internal proclamation, which expresses a common structure of faith, and how she speaks to the world, where only part of what she says will be understood.” (171-72).

On priesthood, he reflects that demands for women’s ordination are understandable when clericalism dominates, when “importance is attributed to the person of the priest . . . He is the real center of the celebration.  In consequence, one has to say: Why only this sort of person?  When, on the contrary, he withdraws completely and simply present things through his believing action, then the action no longer circles around him.  Rather, he steps aside and something greater comes into view . . .” (176). 

On the role of the Bishop: “The officeholder ought to accept responsibility for the fact that he does not proclaim and produce things himself but is a conduit for the Other and thereby ought to step back himself . . . he ought to be one who serves, who is available to the people and who, in following Christ, keeps himself ready to wash their feet. In St. Augustine this is marvelously illustrated. . . . he was really constantly busy with trivial affairs, with footwashing, and [he was ready] to spend his great life for little things, if you will, but in the knowledge that he wasn’t squandering it by doing so.  That would, then, be the true image of the priesthood.  When it is lived correctly, it cannot mean finally getting one’s hands on the levers of power but, rather, renouncing one’s own life project in order to give oneself over to service.” (192-93).

On a celibacy: “The renunciation of marriage and family is thus to be understood in terms of this vision: I renounce what, humanly speaking, is not only the most normal but also the most important thing.  I forego bringing forth further life on the tree of life, and I live in the faith that my land is really God—and so I make it easier for others, also to believe that there is a kingdom of heaven.  I bear witness to Jesus Christ, to the gospel, not only with words, but also with this specific mode of existence, and I place my life in this form at his disposal.” (195)

“History as a whole is the struggle between love and the inability to love, between love and the refusal to love.  This is also, in fact, something we are experiencing again today, when man’s independence is pushed to the point where he says: I don’t want to love at all because then I make myself dependent and that contradicts my freedom.  Indeed, love means being dependant on something that perhaps can be taken away from me, and it therefore introduces a huge risk of suffering into my life.  Hence the express or tacit refusal . . . Whereas the decision that comes from Christ is another: Yes to love, for it alone, precisely with the risk of suffering and the risking of losing oneself, brings man to himself and makes him what he should be.  I think that that is really the true drama of history . . . Yes or no to love.” (283)

Reflecting on the “substance” of faith: “The theology of littleness is a basic category of Christianity.  After all, the tenor of our faith is that God’s distinctive greatness is revealed precisely in powerlessness.  That in the long run, the strength of history is precisely in those who love . . .” (20)

Martin Marty on Benedict XVI

Sightings  4/25/05

Considering Pope Benedict XVI
-- Martin E. Marty

Back from relative hiding on mounts and in wastelands during a papal funeral and a papal election, I have returned to the real world.  Asked frequently for my take on Pope Benedict XVI, I have this to offer:

-- Benedict XVI is a good choice of name.  We wish him benediction.

-- I've tracked him since 1964 (at Vatican II) through his significant turn rightward around 1968, and find him consistent ever since.  No surprises.

-- He is conservative.  So?  All the cardinals appointed by John Paul II are so.  The issue is not "how conservative will he be?" but "how will he be conservative?" -- meaning how expansive, open, and interactive he may be with other Catholics, other Christians, other religions, and secular citizens.

-- As they did with John Paul II, Protestants will largely hold their fire, knowing that the profound and agonized criticisms will come from the pope's fellow Catholics.

-- Thus far, there have been more grumblings from the "Catholic right" about attacks from the "Catholic left" than there have been attacks.  Not all Catholics bow low enough to please the right.  But many lapse into respectful sullenness in a "give the pope a chance" posture.  They will criticize when he gets going, when actions displease.

-- My own citizen-based grumbles: His intervention in the American political campaigns last year broke tradition, portended more involvement, and would have been greeted as a confirmation of non-Catholic Americans' worst fears -- except that many citizens, welcoming his positions, departed from their own long-standing "no papal intervention" traditions.  As for world politics: Will his firm stand against contraception lead him to persist in condemning condoms, with no exceptions -- even, for example, in Africa, where that position contributes to many thousands of deaths?

-- Ecumenically this pope is a hard-liner against Anglican orders.  He often regards believers who are not in the "papal obedience" orbit to be good individual Christians, though not really in churches as part of the one body of Christ.  But two cheers from this Lutheran: he supported and no doubt rescued the 1999 "Joint Declaration" on justification between the Lutheran World Federation (which he wishes were a church) and the Vatican, and has made friendly-to-Luther noises since as early as 1966.

-- He's maybe a bit too ready to slap the adjective "infallible" in front of many current church teachings, for example, against the ordination of women.  So far, infallibility has been invoked formally only two times, with a century between them: once in defining the Immaculate Conception and again in defining the Assumption of the Blessed Virgin.  It would be nice to wait another hundred years before it's invoked again -- if it has to be used at all.

-- His boyhood in Germany during the Nazi regime?  Utterly a non-issue.

-- A very smart man, educated and intellectual, he shares his predecessor's zeal for defining doctrine, but brings more passion to enforcing definitions.  Will the responsibilities of office and his need to reach out change him and his profile?

-- Was the selection of a Western European who met indifference and hostility on many Western fronts of Catholicism a sign that the cardinals have given up on Europe, or the expression of a desperate hope that he can turn things around?  Wait and see.

-- There were too many claims that the politicking surrounding the election of the pope was the work of the Holy Spirit.  Yes, Christians can believe it was in the end the Spirit's work -- but this came to be overstated.  Hover now, as-if-winged Spirit.
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Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

Sunday, April 24, 2005

JPII and the future of the Church: Reflections on Steinfels' Essay

Responding to Michael P's post, "Recommended Reading:  Peter Steinfels," Jason Adkins blogging at the Seventh Age writes:  "The religiosity of Catholic youth in America is actually exploding, but I would wager in the 18-35 demographic, not the teenage demographic."  He isn't surprised by the lack of religiosity among those under 18 because they largely live a pampered life ("soft America") allowing them (for a time) to evade the great questions of purpose and meaning.  Once these questions come to the fore, JPII and the Church provide answers in a beautiful and inspiring way.

I'll throw in my two cents on the possible disconnect between JPII's youth appeal and the religiosity of young American Catholics.  My perception is that John Paul II inspired a core group of young Catholics who are now in love with Christ and His Church.  This core group of Catholics will evangalize their peers, and if not their peers, their peers' children (if they have any).  This core group will provide the priests and religious of the next generation.  The vast majority of this core will not enter into religious life, but they will have larger than average families.  In other words, it is way too earlier to taste-test the fruits of JPII's appeal to the youth.

Pope Benedict on Fear and Freedom

I am growing more hopeful that the caricature of Pope Benedict that's being constructed and bandied around in some quarters (e.g., the fever swamp that is Maureen Dowd's column) won't survive open-hearted examination of and engagement with what he says, writes, and has written.  (Which is not to say that I expect all informed people of good will to embrace all that Benedict proposes).  We'll see.  In any event, here is a short passage, taken from his inaugural homily, that connects well and in interesting ways with some matters that we've talked about many times here at MOJ:

[M]y mind goes back to 22 October 1978, when Pope John Paul II began his ministry here in Saint Peter’s Square. His words on that occasion constantly echo in my ears: “Do not be afraid! Open wide the doors for Christ!” The Pope was addressing the mighty, the powerful of this world, who feared that Christ might take away something of their power if they were to let him in, if they were to allow the faith to be free. Yes, he would certainly have taken something away from them: the dominion of corruption, the manipulation of law and the freedom to do as they pleased. But he would not have taken away anything that pertains to human freedom or dignity, or to the building of a just society. The Pope was also speaking to everyone, especially the young. Are we not perhaps all afraid in some way? If we let Christ enter fully into our lives, if we open ourselves totally to him, are we not afraid that He might take something away from us? Are we not perhaps afraid to give up something significant, something unique, something that makes life so beautiful? Do we not then risk ending up diminished and deprived of our freedom? And once again the Pope said: No! If we let Christ into our lives, we lose nothing, nothing, absolutely nothing of what makes life free, beautiful and great. No! Only in this friendship are the doors of life opened wide. Only in this friendship is the great potential of human existence truly revealed. Only in this friendship do we experience beauty and liberation. And so, today, with great strength and great conviction, on the basis of long personal experience of life, I say to you, dear young people: Do not be afraid of Christ! He takes nothing away, and he gives you everything. When we give ourselves to him, we receive a hundredfold in return. Yes, open, open wide the doors to Christ – and you will find true life.

John Paul II's encouraging words -- "Be Not Afraid!" -- have always struck me as a central theme of his papacy.  Some have suggested that Benedict might retreat from hope and optimism -- back to the Catacombs! -- or that his is a defensive vision of retreat, disengagement, hunkering down.  It does not appear this way to me.  After all, what could be more energizing, and inspiring, than an inaugural proclamation that "friendship" with Christ makes life "free, beautiful, and great"?

At the heart of any Catholic legal theory, it seems to me, is going to be a focus on designing structures that promote "ordered liberty", or freedom appropriately informed by Christian humanism and the common good.  In our "rule of law" traditions, we have long reflected on the insight that the constraints imposed by law should and ideally do facilitate the freedom that the legal enterprise seeks.  I hear Pope Benedict saying much the same thing.

Rick

Saturday, April 23, 2005

Steinfels on Benedict XVI

The final part of the Steinfels article I featured in my post earlier today bears quoting here:

Some people have already written off Benedict XVI, while others are rushing almost to canonize him. Pending a clearer sense of his own vision of the world and of the priorities such a vision suggests, both reactions seem premature.

In a televised interview eight years ago, cited in John Allen's book "Conclave" (Doubleday, 2002), one high-ranking Catholic official gave a rather minimal view of what Catholics should automatically assume about a newly chosen pope. Asked whether "the Holy Spirit plays a role in the election of the pope," the official replied, "I would not say so in the sense that the Holy Spirit picks out the pope, because there are too many contrary instances of popes the Holy Spirit would obviously not have picked."

"The Spirit's role should be understood in a much more elastic sense," the official added. "Probably the only assurance he offers is that the thing cannot be totally ruined."

That official was Cardinal Joseph Ratzinger, now Pope Benedict XVI.

Michael P.

"When a Killer Wants to Die"

The latest issue of Time magazine has an article on "Death-Row Volunteers."  (The article focuses on the case in Connecticut of Michael Ross).  Here is an excerpt:

A sentence of death and a killer ready to die would seem a perfect partnership. With condemned inmates around the country spending an average of 10 years wading through appeals, both the state and the convict can get impatient. Since the Supreme Court reinstated the death penalty in 1976, almost 12% of all U.S. executions have been of so-called volunteers, murderers who plead guilty and ask for death or, more commonly, waive their appeals. As death houses around the country begin to crowd with volunteers, however, their presence raises questions about whether a justice system can be fair when it is distorted by demands from the condemned.

In a climate of growing unease over the death penalty--New York's legislature rejected it last week, a month after the Supreme Court ruled against juvenile executions--the volunteers don't please either side of the debate. For the tough-on-crime crowd, they raise the unsettling possibility that for some criminals death may not be the ultimate punishment. The judicial establishment is more comfortable executing convicts when the appeals process has been lawfully exhausted so the state doesn't appear bloodthirsty. For their part, death-penalty opponents say volunteers are really victims, too brutalized by life on death row to know what they're doing. And in some cases, volunteers have reintroduced executions in parts of the country that had long resisted carrying them out.

For my own views on the subject, see this essay.

Rick

The Immorality of Textualism?

This new paper, "The Immorality of Textualism," by Professor Andrei Marmor, caught my eye.  Here is the abstract:

In this short essay I argue that textualism, as a doctrine of statutory interpretation, is inherently deceptive and therefore immoral. Textualism is typically presented by its adherents as an interpretive practice that is motivated by respect for democracy and respect for the authority of the legislature. But in fact, textualism's preoccupation with ordinary meaning and literal application of statutes is motivated by constraining the legislature's ability to pursue broad regulatory policies. Authorities do not want to be understood literally. Authorities purport to govern, and governance requires cooperation in the spirit of its goals, not strict adherence to the letter of its directives.

The key to the argument, I suppose, is the claim that the "motivation" behind textualist approaches to statutory interpretation is a desire to "constrain[] the legislature's ability to pursue broad regulatory policies" and not a "respect for democracy."  To which I might respond, "no, actually it *is* respect for democracy."  What comes next?

Rick

Jeb Bush and Conscience

Governor Jeb Bush adds his own perspective to our ongoing conversation on Catholics and conscience:

Whether it is the war in Iraq or the death penalty, Florida Gov. Jeb Bush says he is given "pause" when the policies he and his brother support run against the views of the Roman Catholic Church.

Bush, who converted to Catholicism to share the faith of his Mexican-born wife Columba, will lead the U.S. delegation to the inauguration of Pope Benedict on Sunday on behalf of President Bush.

"I get uneasy when the Vatican writes me letters when a death penalty case is about ready to take place in Florida. I'll be honest with you, that gives me pause. It makes me pray harder,'' Bush told reporters in Rome on Saturday.

"Even though it's the law of our land and I have a duty to uphold that law, when there is a conflict .. it does give me concern."

This passage raises several questions. Is Bush conceding that his policies are actually in conflict with Church teaching? If so, does he excuse his failure to seek to change those policies on the ground that he has "a duty to uphold the law?" If so, is there a meaningful difference between Jeb Bush and Mario Cuomo when it comes to their conception of a Catholic politician? (Cuomo, I believe, recounted how he agonized over the abortion question before defending his pro-choice position.)

Rob