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, April 12, 2005

Death as Legal Presumption

By Rob Vischer

MoJ readers may be interested in a new paper posted on SSRN by Florida State law prof Lois Shepard entitled, In Respect of People Living in a Permanent Vegetative State -- And Allowing Them to Die.  Here (thanks to Larry Solum) is the abstract:

This article considers the controversy surrounding the removal of Terri Schiavo's feeding tube and argues for a new approach in determining treatment decisions for people in a permanent vegetative state. Examination of the duty to respect living people as persons rather than as objects reveals that people in a permanent vegetative state are particularly vulnerable under our current statutory and case law to being kept alive only in service to the interests of others. The article proposes that we replace the current legal presumption in favor of continued life support with a presumption to discontinue it for those in a permanent vegetative state and that judicial or quasi-judicial review be brought to bear on decisions in favor of continued life support, particularly tube feeding.

I have not read the article, but the suggestion that a non-instrumental approach to human life requires a legal presumption in favor of death certainly grabs one's attention.

Rob

Online Symposium: Araujo on the Rule of Law

By Rick Garnett

Here is another contribution to our MOJ symposium on the jurisprudential legacy of John Paul II.  Fr. Robert Araujo (Gonzaga) writes:

For John Paul II, the rule of law is essential to the survival and welfare of the human race. The rule of law represented for him how faith and reason combine to develop those normative principles by which individuals, communities, and States flourish in a realm where the transcendent and objective moral order rather than human caprice directs our public and private actions.

Human history, especially in recent times, has been affected by monumental developments in international relations, national development, and scientific advances that have had major impacts on the human race. The rule of law has had a proper role in harnessing and directing these developments so that self-interest or whim has not threatened the dignity of the human person, the unity and solidarity of the human family, and the advancement of the common good. The rule of law, then, serves as a guarantor and “creative force” (as the Holy Father stated in the first year of his Pontificate) in this context. The rule of law offers stability to the members of the human family when they are buffeted by the storms of life that seem intent on embroiling one and all in tempest after tempest. The rule of law is an anchor, a rudder, and a sail. Without the rule of law, the vessel of life founders on the tough and unjust shoals of life.

As John Paul recognized, the rule of law is not ignorant of the tensions and conflicts that permeate human existence. If can, when based on the transcendent and objective moral order, provide the truth needed to stabilize and plot a correct course. Its objectivity is essential to providing for the suum cuique—to each his or her due that is fairly, equitably, and justly determined. The rule of law is built upon the sturdy edifice of faith and reason—of heart and mind. It provides the authentic foundation in which new problems that plague humanity can be met in a judicious and unprejudiced fashion. When all is said and done, the rule of law provides the means to overcome

Babel

and deal with the common demands of humankind. This requires putting aside the differences of personal favoritism and appealing to those “higher faculties” which enable and ennoble the human person to live in concert with fellow beings. Regardless of the particular dispute or the ongoing strife, this rule of law provides the way that comforts and consoles the fair-minded. It is that which enables the person and the community of which he or she is part to address judiciously division and to forge understanding.

It is the rule of law which enabled John Paul II to send forth his emissaries into a world frequented by division to search for common ground and to apply sound reason to address famine, disease, war, illiteracy, and misunderstanding. For the Holy Father, this was the essence of the genuine development of the human race. Through the appropriation of this process, the entire human family and each of its members can flourish, but without it, each person and the community faces peril. While the individual person is the beginning of human destiny and dignity, it is not the only goal. For, man’s social dimension needs to be respected, as the Holy Father noted on so many occasions, and, within a Christian context, the completeness of the person cannot be achieved until self-centeredness is rejected. By overcoming the temptation of exaggerated individualism, the rule of law leads to the natural complementarity of the self in the “authentic social perspective.”

For it to succeed, the rule of law cannot ignore the moral concerns and values that celebrate each and every person—no matter how small, how old, how young, or how alert. That which threatens and consumes the one can eventually menace and destroy all. This is why the rule of law must recognize subsidiarity and solidarity in a simultaneous fashion. God created diversity, and His creation must be celebrated; however, this multiplicity cannot be properly understood until it is commonly accepted that the individual relates to the larger tapestry of life. And the rule of law plays an essential role in recognition of this. That is why the rule of law must promote and protect the family as the basic unit of society: for this is the place in which the individual first meets the community; where the individual begins to enjoy individuality in a loving social context. When the family becomes oppressed, hope for the future and prosperity of the human race becomes doubtful.

The rule of law is compromised when society cares only for some but not all of its members; then, it loses its stability and moral authority. It is at this juncture when caprice and its allies, brute force and disrespect for conscience, take control. The result is barbarism. The antidote to this crisis for John Paul is Jesus Christ. It is the Christian sense of right and wrong that ultimately recognizes the truth of the human condition and the destiny of humanity’s members. Christ draws all; all are drawn to Christ. As John Paul noted, when Jesus was asked the question: “Who do people say that I am?”, only Peter got it right: “You are the Christ, the Son of the living God!” It is through the Christ that the individual is celebrated in his or her inextricable bond with that and those that are beyond. It is Jesus who shows each person the way to God because he is simultaneously of that person and of God.

As the Holy Father said at the beginning of his Pontificate, “allow me to invite you to listen to the voice of Christ, to the message of the Gospel concerning man. It cannot but strengthen you in your desire to build a world peace through law.” And, to this, I say: Amen!

Rick

Online Symposium: Coughlin on JP II and Human Dignity

By Rick Garnett

The first of (what we hope will be many) contributions to MOJ's online symposium on John Paul II's jurisprudential legacy comes from my friend and colleague, Fr. John Coughlin.  In a published paper, "Pope John Paul II and the Dignity of the Human Being," Harv. J. L. & Pub. Pol'y (2003), Coughlin writes:

[L]ong before his election as Pope, Karol Wojtyla was developing his understanding of the dignity of the human person in his philosophical and theological writings.  In a 1968 letter to the French theologian Henri de Lubac, Wojtyla wrote, “The evil of our times consists in the first place in a kind of degradation, indeed in a pulverization, of the fundamental uniqueness of each human person. This evil is even much more of the metaphysical order than of the moral order. To this disintegration, planned at times by atheistic ideologies, we must oppose, rather than sterile polemics, a kind of "recapitulation" of the inviolable mystery of the person . . . .” 

The belief that each human being possesses a metaphysical value simply in the fact of his or her existence remains at the root of John Paul II's indefatigable defense of human dignity. . . . 

The philosophical foundation for John Paul II's defense of the dignity of the human being begins with two ancient truths. First, it posits the universality of one human nature that transcends the limits of history and culture. One must admit that, historically, the idea of the universality of human nature has stemmed from Aristotelian cosmology, which mistakenly understood the universe as fixed and immutable.  Because he desires a philosophical approach consistent with the modern scientific method, John Paul II attempts to retrieve essential aspects of the tradition through the adoption of a radical realism and the human capacity to know it. His philosophical method requires a turn to the human subject and a phenomenological analysis of the somatic, emotional, intellectual, and moral dimensions of human experience.  Nonetheless, he refuses to embrace a skepticism that denies the possibilities for the apprehension of truth in the human intellect. Rather, John Paul II's reflection on experience leads to his affirmation of a universal human nature and permanent natural law contained within the human person.  In his view, the dignity of the human person, human rights language, and an objective moral order all depend on the universality of human nature.

Second, John Paul II accepts the classical metaphysical view, which understands the human person as characterized by the intellect and free will. In accordance with the modern starting point, John Paul II believes that reflection on human experience reveals the human being as a dynamic and irreducible unity of body and spirit.  The intellect signifies the interior consciousness of the human being in which the multi-faceted interplay of somatic, emotional, reasoned, aesthetic, and spiritual awareness form the concept of self in relation to others and to the world.  Free will means that the human being may pursue goals identified in the intellect to constitute oneself through action.  The interrelatedness of the intellectual and intentional faculties enables the human being to constitute oneself in accordance with the understanding of value recognized through the intellect and appropriated through the intentional act of the will. In Pope John Paul II's understanding, each human person remains "a remarkable psychophysical unity, each one a unique person, never again to be repeated in the entire universe."  John Paul II thus understands the dignity of the human being both in an objective and in a subjective sense. The objectivity derives from the universality of human nature according to which every human person possesses the potential for intelligent and free action. The subjectivity flows from the fact that the human being may employ the intellect and will creatively to constitute the individual self. . . .

The philosophical foundation of Pope John Paul II's defense of human dignity has metaphysical, existential, and moral dimensions. The universality of a transcendent human nature affords a metaphysical foundation for the dignity and worth of each human being. Existentially, the human being acts through the intellect and will to create a sense of self in concrete historical circumstances. The creative freedom of the human being is enhanced to the extent that the will acts in accord with the objective moral order understood in the intellect. Theologically, John Paul II sees the human being as created in the image of God, conflicted as a consequence of freedom to choose between good and evil, redeemed by the perfect love of Christ, and living in the present time with the hope of the absolute consummation of this love. Considered together, the philosophical and theological foundations constitute a sturdy conceptual structure on which to rest human dignity. It is upon this structure that the Universal Pastor of the Catholic Church has relentlessly preached his message of human dignity to the four corners of the earth.

Fr. Coughlin has also discussed the jurisprudential implications of John Paul II's work and thought elsewhere, including, e.g., "Natural Law, Marriage, and the Thought of Karol Wojtyla," Fordham Urban Law Journal (2001).

Rick

Interesting Response to Martin Marty

By Michael Perry

[Thought MOJ readers would be interested in this response to my earlier post today.]

Dear Dr. Perry,

I respect Martin Marty and agree with him that "attention-grabbing Catholic
defense leagues" (doubtless a thinly-veiled reference to the organization
headed by William Donohue) sometimes cry wolf.

But if Marty did not find "a single inch of print showing Protestants
attacking the pope or Catholicism" over the last two weeks, then he's missed
commentary by high-profile Calvinists like Dr. James White, and high-profile
Baptists like Dr. Al Mohler, neither of whom can be lumped with "creepy,
crawly commentators at the outer edge of cyberspatial blogs."

White saw the death of the pope as an opportunity for other Christians to
convict Catholics of our alleged doctrinal errors. Mohler complained that
Protestants have been too cozy with Catholics of late, and that the pope
paid too little attention to issues of concern to other Christians. Both
were outspoken critics of Catholicism even before the pope's death, and both
(along with pastor Mark D. Roberts, a frequent guest on Hugh Hewitt's
popular radio show) take a dim view of the renewed Protestant interest in
Mary, the mother of Jesus.

In other words, while Marty is right that Catholicism's harshest critics
come from within her ranks, his optimistic assessment of a thaw in
relationships between Catholics and Protestants, while not unreasonable, may
nevertheless be premature.

Along similar lines, this may be of interest:

http://www.spectator.org/dsp_article.asp?art_id=7989

Best,

Patrick O'Hannigan
"The Paragraph Farmer"

http://paragraphfarmer.blogspot.com/

Martin Marty on JP II, Catholics, and Protestants

By Michael Perry

Sightings  4/11/05

Protestants and the Pope
-- Martin E. Marty

Twenty-five percent of polled Americans "prefer" being Catholic, fifty percent prefer being Protestant/Evangelical, and the rest prefer "other" -- Muslim, Jewish, Mormon, Orthodox, or none of the above.  How did the Protestant half behave after Pope John Paul II died?  I could be blindsided in the time between the early deadline for this column (Wednesday) and its appearance on Monday.  It could be that my many, many sources missed something.  Help me out if I missed something, too.  But among the thousands of column spaces given to the pontiff, I did not find a single inch of print showing Protestants attacking the pope or Catholicism.

Of course, some Protestants may have made incidental generic criticisms of some papal policies, but they were not as severe as Catholic criticisms.  Beyond that, of course, you can find some creepy, crawly commentators at the outer edges of cyberspatial blogs.  They represent no one and report to no one.

From this I draw a conclusion, one that I hope the past week reinforces.  These years, there is very little criticism of Catholicism and the pope from the Protestant half of America.  And I formed a resolve: henceforth not to pay much attention to any attention-grabbing Catholic defense leagues.  Weigh in -- as I have not -- against vouchers that Catholics might use for parochial education, or join millions of Catholics in criticizing policies that have political implications (such as banning birth control education) and you get tabbed as a Catholic-hater.  This past week's responses by grieving Protestants robbed defense leagues of credibility.  Americans can resume political debate across denominational lines, and criticize each other without being accused of being "anti-."

Why, you ask those of us with long memories, is the absence of Protestant sniping today not being remarked on?  First, for doctrinal reasons: That the pope is the antichrist -- official teaching in historic confessions of many Presbyterian, Reformed, Lutheran, Baptist, etc. bodies -- remains on the books of some who have not tidied up these old statements.  But some Lutherans who still have the pope as antichrist on the books now address him or speak of him as "dear brother in Christ," seeing him as an ally, for example, in opposing laws allowing for abortion.

More on why it is unremarkable: Note that most criticism over the papacy's slowness and lightness in respect to the priestly abuse scandal or any number of other churchly issues comes from Catholics, not Protestants.  These issues are seen as in-house Catholic affairs by outsiders who live in glass houses.

Still more on why it is unremarkable that Protestants didn't exploit the moment to go public with attacks on the pope, the papacy, and Catholicism: The combination of good manners and social graces during mourning periods after losses through death evokes natural empathy for the mourning family.  Even mild critics hold their fire.  There were tears and sympathy and silence.

What is remarkable is the degree to which suspicion of the papacy, criticism of the popes, and attacks on their persons have diminished thanks to ecumenical bonds among mainstream Protestants and Catholics -- and also thanks to political alliances and moral coalitions among Evangelicals and Catholics, who saw the pope at the pinnacle being a favored figure.

Martin E. Marty's biography, current projects, upcoming events, publications, and contact information can be found at www.illuminos.com.

Physician-Assisted Suicide

By Michael Perry

For an excellent statement of the case against government's permitting physician-assisted suicide, see this piece by the diocesan theologian for Honolulu, delivered in a homily for the annual Red Mass in Honolulu at the start of the legislative season.  I would provide a link to the piece, but I don't have a link.  (Do any of you?)

Father Marc Alexander, The Problems With Physician-Assisted Suicide, 34 ORIGINS:  CNS Documentary Service 676-680 (April 7, 2005).

Scap's Reflections on John Paul the Great

By Michael Scaperlanda

As I walked to psychology class in the fall of my freshmen year in college, one of my classmates approached and asked if I had heard about the death of the Pope.  I wondered where this person had been during the past month or so as I patiently explained that it had been over a month since the new Pope, John Paul I, had been elected.  My classmate, of course, was correct…

In CCD my senior year of high school (just months before JPII’s election), we were exploring the topic of Jesus the political revolutionary, as we contrasted his approach to revolution with the approach taken by the Zealots.  My freshmen year of college, I took two courses for credit at our

Catholic

Newman

Center

.  The first course was on morality and one of our texts (the primary text, I believe), which I just pulled off my shelf, is titled “The Morals Game” and is a text devoted to “values clarification.”   The preface to this book put out by Paulist Press says that “abortion and euthanasia, quality of life v. quantity of life [notice no discussion of sanctity of life]” … “are the issues that make the headlines, because it is by these decisions that people stand or fall and games are won or lost … - there are no easy rulebook answers.”  The author says that his “book is not intended to push any particular game” but rather “to enter the spirit of various moral games as sympathetically and even enthusiastically as possible,” helping the student “clarify” his values as he “considers representative alternative positions.”  The other class dealt with human sexuality from a supposedly Christian perspective (and in fairness it might have done this) but the only thing I remember from the class is the explicit video of a naked woman as we learned the mechanics of female stimulation. 

With these sorts of experience providing the foundation for my Catholic intellectual life, John Paul II remained a distant figure in those early years of his pontificate.  (It would be more than two decades, for instance, before I became acquainted with his early Wednesday Catechesis, which we now know as “The Theology of the Body”).  Coming from a strong Democratic Catholic household, I had a more developed sense of social justice rooted in Catholic faith.  And, my parents and pastors also provided the seeds for a good prayer life.  These aspects of JPII’s ministry were, therefore, more readily accessible to me.  But, I didn’t yet have any sense of how they all tied together.  They were branches in search of fertile soil and thirsty for cool water.

During the 80’s, I was in a rush, finishing college in three years, law school, a clerkship, and the big firm life.  Married in ’81, with children arriving in ’82, ’84, ’86, & ’88, I didn’t have (or didn’t take) much time to immerse myself in the writings and teaching of our Pope, although I did make it to a papal mass in

San Antonio

in 1987.

Three events in the early 1990’s drew me closer and closer to the man history will know as John Paul the Great.  First, my wife’s deepening prayer life and my feeble attempts to follow.  In other words, I started taking the call to growth in holiness seriously.  Second, UC Berkeley law professor, Phillip Johnson, taught me the importance of uncovering the philosophical assumptions underpinning any school of thought or line of reasoning.  In other words, I started to see the need to pull all the strands of life together into a coherent whole.  And, third, we moved to

Oklahoma

where most of my friends were wonderful evangelical Protestants who often asked me questions like “why do you worship Mary?” (the quick answer is that we don’t)  In other words, I had to learn my Catholic faith.

All of this led me to John Paul II, and what a rich experience it has been.  From a professional level (regarding the development of Catholic Legal Theory), he has provided me with more than enough material to work with in a career, and more importantly, he is indirectly responsible (I believe) for the expanding community of Catholic legal scholars.  At this precarious point in the development of western civilization, he has provided us with the foundation for society’s renewal, rooted in the dignity of the human person and the person’s vocation as revealed in the mystery of Trinitarian Love (Self-Donation) as witnessed in the person and life of Jesus Christ.

While I am immensely thankful for the intellectual roots planted in my mind by Pope John Paul II, I am most grateful for his example of holiness, his deep and abiding love for God and neighbor, his committed prayer life, his undying sense of hope, his ability and willingness to dialogue with anyone, and his ability to teach absolute truth yet fully love those who had yet to respond to that truth.  One of my favorite John Paul II stories, as told in George Weigel’s biography, “Witness to Hope,” is of the time Bishop Wojtyla called in a priest from an outlying parish for the purposes of reprimanding the young priest.  After the chewing-out, the future JPII asked the priest to come pray with him before the Blessed Sacrament.  After a long, long time (an hour or so) in which the priest was looking at his watch and contemplating the train he had to catch, Wojtyla got up and asked the young priest to hear his (Wojtyla’s) confession.  To me, this one story says it all. 

I was blessed to see him one last time as he waved from his window during Mass on Palm Sunday, less than two weeks before he died.  My head knows it will come in time, but my heart crys “Santo Subito.”  Thank you John Paul for teaching me to "be not afraid." 

Monday, April 11, 2005

The Conservative Case Against Wal-Mart

By Rick Garnett

Thanks to Amy Welborn, for reminding me to post a link to MOJ-friend Steve Bainbridge's post, "The Conservative Case Against Wal-Mart."  After a review of the data and facts, Steve quotes Russell Kirk:

All my life I have known the city of Detroit, called-during World War II "the arsenal of democracy." ... In the shocking decay of that great city nowadays, we behold the consequences of an inhumane economy-bent upon maximum productive efficiency, but heedless of personal order and public order. Henry Ford's assembly-line methods had much to do with the impersonality and monotony of Detroit's economic development; and so, in some degree, did Ford's concentration of his whole productive apparatus at the Rouge Plant; but of course Henry Ford had no notion, in the earlier years of his operation, of what might be the personal and social effects of his highly successful industrial establishment; nor did the other automobile manufacturers of Detroit. Indeed, they seem still to be ignorant of such unhappy consequences, or else indifferent to the consequences, so long as profits continue to be made. Consider the wiping out of Poletown through the unholy alliance of industrial, municipal, and ecclesiastical power structures, regardless of the rights and the wishes of Poletown's inhabitants-all to build on the site of Poletown a new industrial complex, which already, far from supplying the promised increase in tax revenues for Detroit, is involved in grave difficulties.

Steve continues:

Outside the most heavily urbanized areas, Wal-Mart typically builds on the edge of town, putting up a huge (and butt-ugly) big box building surrounded by acres of bare concrete parking lots. There are few sights in the American scene less attractive or appealing to the eye.

Kirk observed that "Detroit, during my own lifetime, has produced tremendous wealth in goods and services. But it has been a social failure. And so have nearly all of America's other major cities." I put it to you that Wal-Mart contributed to moving those failures into small town America by shuttering local business and creating huge barriers to entrepreneurial entry into fields traditionally the province of local small business men and women.

Being a conservative is supposed to be about things like tradition, community, and, yes, aesthetics. If I'm right about that, it's hard to see why a conservative should regard Wal-Mart as a societal force for good even if Hugh's right about the job story.

So what do we do? Well, we must strike a balance between respect for private property rights (see my Kelo post) and our other values. How? On the one hand, government should not legislate against Wal-Mart and its ilk. On the other hand, government should not subsidize Wal-Mart either through zoning or tax breaks. Wal-Mart’s a big boy, so to speak, who can take care of itself. We ought to let it compete in a free market. And those of us with a bully pulpit out to use it to encourage Wal-Mart to become a better neighbor and citizen.

"Law Like Love"

By Rick Garnett

A few months ago, I mentioned a recent paper, "Law Like Love," by ASU's Professor Jeffrie Murphy.  Here, finally, is a link to the (wonderful) paper.  Here is the abstract:

This lecture seeks to open a discussion of the question: What would law - particularly criminal law - be like if we regarded love (agape) as the first virtue of social and legal institutions? The lecture discusses punishment - including capital punishment - in a framework of love, and critically considers the claim frequently made that love-based forgiveness is inconsistent with capital punishment and perhaps with all punishment.

Murphy's paper seems particularly timely in light of the rich conversation we and other bloggers had a few weeks ago about punishment theory, love, desert, and suffering.

Rick

Fellowship Announcement

By Rick Garnett

The Notre Dame  Center for Ethics and Culture is now taking applications for the
2006 Myser Fellowship.

The Myser Fellowship is generously provided by the Myser Family Foundation. The
aim of the Myser gift to the Notre Dame Center for Ethics and Culture is to
reward great teachers and promising scholars by helping them pursue a year of
research and writing in a stimulating intellectual environment, an environment
which includes the Center's W.P. and H.B. White Director, David Solomon of the
University of Notre Dame's philosophy department, and the Center's Permanent
Senior Research Fellow, Alasdair MacIntyre.

Applicants must already be in possession of a Ph.D. in the humanities or social
sciences with at least one year of full-time teaching experience at a college
or university. The term of the fellowship is one year, from January 1 to
December 31. We prefer applications for the calendar year, but we consider
applications for the academic year under special circumstances. Fellows must be
in residence for two consecutive semesters and engage in a well-defined research
project in the humanities or social sciences that is congruous with the aims of
the Center. Fellows are expected to participate fully in the life and
activities of the Center. The Center will provide half of the fellow's current
salary, up to $40,000. It is expected that the remainder of the fellow's salary
will come from the fellow's home institution. Fellows will also be given full
access to the University of Notre Dame's research and recreational facilities.

Applicants must submit a cover letter of introduction; a curriculum vitae;
documentation of their excellence in teaching (e.g., student evaluations and
testimonials, administrative evaluations and letters of recommendation,
information regarding teaching awards won, and the like); and the names and
contact information of three references. Applicants must also submit a brief
description of no more than three double-spaced, typewritten pages outlining
their research aims if awarded the fellowship. This description should indicate
how the applicant's research aims contribute to the mission of the Center.
Details regarding the Center's mission should be closely consulted. The
deadline for application for the fellowship is May 1. Successful applicants
will be notified by July 15.

Address all applications and inquiries to Myser Fellowship, Tracy Westlake,
Administrative Assistant to the Director, at the Notre Dame Center for Ethics
and Culture. E-mail: [email protected].

--
Notre Dame Center for Ethics and Culture
1047 Flanner Hall
Notre Dame, IN 46556
Tel: 574.631.9656
Fax: 574.631.6290
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